B (A Child)

This is Mr Williams’s application for permission to appeal an order made by Charles J refusing separate representation to his client Z, who is a 14 year old in the midst of a battlefield between his parents: the mother seeking an order under the Convention for Z’s return to Norway; the father, who has the care of Z in this jurisdiction, resisting strongly. I at once record that the judgment of Charles J explaining his reasons for refusing separate representation is characteristically careful and learned. He reviews the authorities meticulously and explains his discretionary conclusion. That judgment was delivered on 3 December.

Mr Williams took the case back to him on 6 December, the judgments of the House of Lords in re M & Anor (Children) [2007] UKHL 55 having become available in the interim. Charles J on that occasion refused permission to appeal to this court, and in giving his reasons made reference to the decision of the House in re M. He said:

“Counsel sent me a copy of the speeches in re M. I took the view that the approach I had applied accorded with the approach set out in that case and in any event applying those paragraphs I would have reached the same conclusions. For those reasons and lack of court time I refused to hear further submissions and confirmed my order of refusal of permission to appeal. However I directed that my order was not to be drawn until the following morning so that if the mother was to consent to representation my order could and would be that he should be joined. I took this course because although in my view the relevant test for joinder was not satisfied given where the case has now got to a very real need for its resolution to avoid amongst other things further worry to and pressures on the child the mother might agree to this pragmatic course.”

Mr Williams has told us today that she did not, hence his application before us.

It seems to me that Mr Williams has demonstrated a ground upon which this court might interfere with the discretionary conclusion of the judge, and that is that insufficient weight has so far been accorded to the public law element in the case. The authorities in this court make it plain that it is essentially in cases involving a public law element that separate representation has been permitted in Hague Convention applications. Mr Williams stresses that if Z be ordered back to Norway, it is to the Norwegian care system.

Accordingly, I would adjourn this application for a further oral hearing on notice to the parties, with appeal to follow if permission granted. Plainly that is but short notice to mother and father’s legal team, but anything other than short notice cannot be indulged in a Hague case which has a track record of delay and which should be disposed of finally at the beginning of the Hilary term. It may be that a second invitation to the mother to reconsider her position would save us all having to congregate again on Thursday of this week.

I agree with the course My Lord proposes, and do not wish at this stage to add anything.