D (A Child)

LORD JUSTICE THORPE: This is an application for leave to intervene brought on behalf of a seven year old child by Mr Charles Howard. There is a pending appeal fixed for next week.

The case is undoubtedly difficult, and I think is fairly described by Mr Howard as exceptional. The discretion that I exercise is plainly finely balanced. It is unnecessary for me to sketch the history of the litigation so far, beyond saying that in the court below, the mother unsuccessfully relied on two defences. (1) She asserted that the original removal from Romania was not wrongful. (2) She asserted an Article 13(b) defence. Both of those defences failed before the judge, and the point is well made by Mr Howard that she seems by her notice of appeal only to challenge the judge’s finding on the Article 3 defence and not challenge the judge’s finding on the Article 13(b) defence, although the last paragraph of her counsel’s skeleton argument appears to be equivocal.

An application to intervene by the affected child at the appellate stage is a rare application, and even rarer are the instances in which such applications are granted. Overall I have to exercise a proportionate judgment. I have to bear in mind that there are already two leaders in the case; one to put the appeal, the other to respond to it. I have to have regard to the fact that fairness is not one-sided, and the court has to have regard to fairness to the respondent in the proceedings too. There is, I think, a valid distinction to be drawn between allowing the views of this seven year old child to be put to the court and allowing elaborate argument to be put to the court on his behalf.

It is important to notice that the main part of the Article 13(b) defence run by the mother below was the disruption to the child if a return order were to be made. Mr Setright submits that there is not a huge distinction between the case that the mother ran below and the case that Mr Howard now seeks to run, albeit that the mother deliberately chose to categorise the factual matrix as Article 13(b), rather than as the child’s objection. As Mr Setright observes, that may have been a reflection of the young age of the child and the fact that inevitably the child has been, consciously or unconsciously, influenced by the mother’s passionate involvement in this long-running litigation.

I have reached the discretionary conclusion that a request go to CAFCASS in the Thomas More Building to meet the child and to submit a brief report on his views for next week’s hearing. I think that that is an exceptional direction, and the only reason I make it is because the child has now been drawn into the litigation process. He has found his way to the Children’s Legal Centre, who have taken him to the very best specialist lawyers in this field. He has been seen not once but twice by Mrs Hutchinson, who has huge experience in this field. He must have some sense that he is now a player. It is for that reason that I take the unusual step of asking a CAFCASS officer to see him to gauge his views so that at least he will have the reassurance that his views are before the court, and the appellate court will not disregard him as an independent person.

I am relieved that the mother’s solicitors are here in a watching capacity. They will have heard the exchanges and they will obviously have the opportunity of considering in consultation with leading counsel, at the earliest opportunity, whether it is appropriate for the existing notice of appeal and skeleton argument to be enlarged to enable the alternative and wider review to be put before the court.

I speak only for myself, but I apprehend that the court will be indulgent to an application to amend, given the developments since and the involvement of the child in the litigation process. So that is my decision.