Family Law Hub

M (Children) [2014] EWCA Civ 1269

Hague Convention proceedings in which M was appealing an order which had been made for the return of 3 children to the Republic of Ireland against the childrens' wishes.

  • B4/2014/2445

    B4/2014/2447

    B4/2014/2499

    Neutral Citation Number: [2014] EWCA Civ 1269

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY

    FAMILY DIVISION

    (MRS JUSTICE ROBERTS)

    Royal Courts of Justice

    Strand

    London, WC2A 2LL

    Wednesday, 30 July 2014

    B E F O R E:

    LADY JUSTICE BLACK

    IN THE MATTER OF M (CHILDREN)

    (DAR Transcript of

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    Mr Christopher Hames QC (instructed by Freemans Solicitors) appeared on behalf of the Appellant Children

    Miss Ruth Kirby appeared pro bono on behalf of the Appellant Mother

    Mr James Turner QC and Ms Menvish Chaudhry(instructed by Williscroft & Co) appeared on behalf of the Respondent Father

    J U D G M E N T

    (As approved by the C ourt)

    Crown copyright?

    LADY JUSTICE BLACK: On 18 June 2014, Roberts J made an order under the Hague Convention 1980 for the return of three children to the Republic of Ireland. The children are J, born in December 2001 and now 12, T, born in November 2003 and now 10, and I, born in June 2008 and now 6. They have an elder brother D who is 16 years old. He was not joined in the proceedings in front of Roberts J, but he has participated in this proposed appeal. D and J are represented by Mr Hames. D is represented, at least for the moment, by Mr Hames pro bono. The mother is represented by Miss Kirby. She too is acting pro bono, as is so often the case these days.

    The father is represented by leading and junior counsel, Mr Turner QC being the leading counsel. I am not sure about the funding basis for that and I have not inquired.

    I first saw this matter on paper when I was asked to consider giving permission to appeal to both J and D. At that point there was no application by the mother for permission to appeal. Both of the applications by J and D were out of time, but the reasons given were entirely understandable. I was therefore prepared to consider the matters out of time and, having looked at the proposed grounds on behalf of J, I granted permission to him to appeal out of time saying in my reasons that the arguments that he wished to put forward concerning the judge's treatment of the children's views about a return to Ireland, and in particular J's views, have a real prospect of success on appeal.

    From that it will be clear that the particular issue in the case is the children's objections to a return to Ireland, and the question of the judge's discretion were she to have found that they did object to a return. I do not propose to go into the ambit of the appeal in this short judgment, which is meant to deal only with procedural matters, but it is the judge's treatment of the evidence about the children's objections that is the central focus of this appeal.

    I decided that the appropriate course in relation to D's application for permission to appeal was to refer it for a directions hearing and I listed it for hearing together with consequential directions about J's appeal. I did so because there are a number of matters of difficulty, which I recognised from previous cases in this court, where children are joined as parties in an appeal in Hague proceedings. We have, therefore, in the course of the shortish directions hearing today, worked through a list of the directions that needed to be given, and the purpose of this judgment is simply to encapsulate where we have got to for those who finally hear the full appeal.

    I have today given permission to appeal to D and to the mother. The grounds that were advanced on their behalf were very similar to the grounds advanced on behalf of J. However, in relation to D he also wished to complain that he had not been joined as a party to the proceedings in the court below. That was a separate point which did not arise in J's appeal and did not arise in the mother's appeal. It was for that reason that I considered it appropriate to give him permission to appeal himself, rather than simply joining him as a respondent who had an interest in these proceedings. I was satisfied on the basis of what I might refer to as the case of "George Wimpey", that this court had power to join parties who have an interest in the outcome of the appeal. We can see a reference to this in paragraph 11 of Re LC [2014] UKSC 1.

    I considered whether the younger two children should be joined as parties and determined that that was not necessary. I also bore in mind that there is potential damage to children in being participants in litigation. It seemed to me there was nothing that could not be argued, in any event, without the participation of those children as parties to the proceedings, and that it may be harmful to them, and indeed would not assist in the clarity of the argument, if they were separately represented or indeed joined as parties at all. I would rely upon the mother and possibly also Mr Hames for J and D to raise with the court any argument that there may be about the intolerability of some of the children having to return without others of the children. In other words, if thought were to be given to the possibility of the younger two going back, because their objections were of a different character to the older two, then the court would need to be invited to consider whether it would be intolerable to split the children in that way.

    We have touched today upon the very difficult question of the rules which apply to the joinder of parties and the status of parties who are children in this court. In short the issue is whether the matter is governed by the Family Procedure Rules 2010 or by the Civil Procedure Rules Part 52 and the other provisions in the CPR to do with the joinder of parties. If the CPR apply it seems that there is no test laid down by the rules for the joinder of the children and whether they should have any form of litigation friend. If the FPR apply, then the children are joined if it is in their best interests to join them and they are required to have a guardian.

    This is a difficult issue. The FPR provide at rule 2.1 that they apply in the courts up to the High Court, unless the context otherwise requires (I am not quoting directly from the rules in saying that). Mr Hames sought to advance an argument that as there were not any provisions of equivalent nature in the Court of Appeal by virtue of the CPR, the context otherwise required and the FPR would apply. That is a matter that he may wish to advance, but I was not of the view that a definitive answer should be given about that today. There are other arguments that may be advanced, I think, by way of suggestion that the FPR could have an impact in this court. I note what Lord Wilson said in Re LC where he may have thought that the FPR would apply in this court.

    This being a difficult issue it is not appropriate for determination on a directions appointment in front of a single Lord Justice. It is not necessary for me to determine it today because I can make arrangements for the children which have sufficient flexibility to allow the full court to determine the matter, if it thinks that it is necessary so to do, when it hears the appeal. It can then have the benefit of full argument on all sides on the issue and the input of three Lord Justices. The reason I say that the matter can be dealt with without making a determination today is that it seems to me there is no prejudice to anybody if the children are joined with a litigation friend following essentially the CPR procedure, and the litigation friend remains sufficiently flexible to act as a guardian should it turn out that that is the appropriate procedure.

    As far as I am aware nobody has raised any objection to this course being taken. The solicitor for the children is equally appropriate either as a litigation friend or as a guardian. Lord Wilson referred to the possibility that a solicitor would act as a guardian in Re LC. She can therefore convert, with no difficulty at all, into the role of a guardian should the court think that that is appropriate. I am quite satisfied that it will make no difference to the way in which she approaches the matter between now and then.

    So that matter will be left for the full court and I will invite counsel, when I finish giving this short judgment, to help me to formulate a question for the full court to determine if it chooses so to do. I am not binding its hands. It may determine that it is not necessary to make the decision in this case because everything has proceeded, practically speaking, along satisfactory lines anyway and there are plenty of other things to determine in the course of the proceedings.

    I deal next with the question of the filing of further evidence. There is no objection to there being a statement from the children's solicitor dealing with their position. She has filed one already, which I used for the purposes of the permission application, but that, it is agreed, should be withdrawn and replaced by a further statement. The reason for that is that the first one was prepared without the benefit of sight of the papers in the case. The second reason is that a transcript of the CAFCASS officer's evidence is going to be obtained by common consent and there may be things arising from that that she needs to deal with. She is going to get that statement in two weeks. That allows time for the CAFCASS transcript to be available and the solicitor to do the work.

    The father may wish to make an application to file further evidence himself. That would be in two categories: firstly, in relation to his response to the solicitor's new statement and secondly, in response to the CAFCASS transcript. The appropriate course to be taken by the father in those circumstances, if he does wish to file further evidence, is to put in a proper notice seeking to file additional evidence and the court will then determine whether that is decided forthwith, or whether it is referred to the full court which may well be the appropriate course in this case. If that course is taken, then I would anticipate it would be referred to the full court actually at the hearing of the appeal.

    There was an idea that a psychologist's report on one of the children would be appropriate, but it has not been pursued as something which would be appropriate at this stage. I do not anticipate any application for further evidence from a psychologist to be obtained and used on appeal. If it is appropriate and if the appeal were to succeed and the matter be remitted, then it can be taken up at that stage.

    Expedition is the next question to which I need to turn. The matter is a Hague application and as everyone is well aware Hague applications must be heard expeditiously. There is of course the obligation to hear them within six weeks of the commencement of the proceedings. That naturally is slightly less do-able where an appeal is to be heard, but nonetheless speed is normally of the essence. In this particular case there are a number of reasons why I am directing that the matter should be heard not before the first week in September. The reasons are the need to obtain the CAFCASS transcript, the new statement from the solicitor, the father considering his position as to whether to seek to put in any additional evidence, and finally the question of the mother's counsel. The mother not having any public funding and having to rely on pro bono representation is not in a position to change her legal representation at short notice. It would be particularly difficult to do so, I apprehend, during the course of the August holidays. Her pro bono counsel is not available until the first week in September, and that is an additional reason why I would order that the matter went in at that point.

    I approached the Vice President of the Court of Appeal when I gave permission on paper for approval that this matter should be seen as vacation business. At that point the listing was to be for one day. We have now discussed the matter in more detail and it seems to me that two days is a more appropriate time estimate. In those circumstances I think it is incumbent on me to say that it is appropriate for vacation business, subject to the approval of the Vice President of the Court of Appeal. There are other dates which should be avoided. They are from 19 September until the end of the week following that, which must be the 26 September.

    I appreciate in saying this that the father is very anxious that the children should be returned to Ireland, if they are being returned to Ireland, as near as possible to the start of the new school term and I have borne that in mind. I am afraid that the sad reality is that the resources will not necessarily be available to accommodate a hearing as early as we would wish, in any event, but whatever efforts that can be made will be made.

    The question of the father filing a respondent's notice came up in the course of this hearing. Having consulted the Practice Direction 52C, it was apparent that no further directions needed to be given with regard to the timing of that. It fits with the rest of the timetable.

    The three appeals, that is by J, D and the mother, are to be heard together and all of the directions that I have given apply to all three of the appeals. So there is, in summary, one set of proceedings comprising three appeals all on similar points, and one respondent. I know that is not technically correct, but that is what it really amounts to.

    SMITH BERNAL WORDWAVE

Judgment, published: 06/10/2014

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Published: 06/10/2014

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