T (Children) (Re)

In wardship proceedings, the children’s welfare is paramount and their wishes and feelings are important but cannot be determinative. The court must assess future welfare, informed by the past and by expert evidence, while recognising that children should not bear responsibility for the outcome. Hague Convention return proceedings are materially different: they determine whether children should be summarily returned and do not determine the merits or future welfare arrangements. A local authority’s decision not to commence care proceedings following a Children Act 1989 section 37 report does not invalidate conclusions reached in wardship proceedings. An appellate court should not reopen a carefully determined welfare decision merely because the feared practical difficulties have occurred.

The father sought permission to appeal against Johnson J’s order of 31 July 2001 in wardship proceedings concerning his two children. The order provided that the elder child, G, should live with him and that the younger child, T, should live with their mother, with supervised sibling contact.

The father argued that the children should live together with him and relied on earlier Hague Convention proceedings, in which the Court of Appeal had declined to order G’s return to Spain because of her objections and had also declined to order T’s return. He relied additionally on a subsequent section 37 report and challenged the refusal of separate representation for G, the evidential decisions, and the refusal to reconsider T’s residence. The central issues were whether the wardship decision should be reopened and whether G should have separate legal representation.

1. Applications refused. The father’s application for permission to appeal was refused. G’s request to instruct her own solicitor separately was likewise refused. There was no order for costs, and the transcript was to be provided at public expense.
2. Hague Convention proceedings and wardship proceedings served different purposes. The former concerned only summary return to the country from which the children had been removed in breach of custody rights. They did not determine the merits or what arrangements would best promote the children’s future welfare. The earlier decision therefore did not determine the later wardship issues.
3. Wardship proceedings were governed by the paramount consideration of the children’s welfare. The court had to consider the future in the short, medium and longer term. The past was relevant insofar as it illuminated that assessment, while the present circumstances were often more important. The children’s wishes and feelings were an important component of welfare, but could never be decisive. Children should not be made responsible for decisions which properly belonged to the court.
4. A section 37 report served to enable the local authority to investigate whether care proceedings were appropriate. Care or supervision orders required significant harm, or likely significant harm, and a further finding that such an order would benefit the child more than leaving matters as they were. The decision not to commence care proceedings therefore did not contradict the expert and judicial conclusions reached in the wardship proceedings.
5. The evidence supported the conclusion that T needed to live with his mother and that separating the children might be the only practicable solution. The fact that the predicted difficulties had materialised supplied no basis for reopening the decision. The appropriate remedy was constructive parental cooperation and use of the contact arrangements.
6. Separate representation for G was exceptional in private disputes between parents. Her views were clear, but they coincided with the father’s position and did not establish a basis for interfering with the order. Full maturity included the capacity to see matters from another’s perspective and to accept legitimate authority, including court orders.
7. Lord Justice Rix agreed with Lady Justice Hale. He emphasised that the order could work only if both parents stopped litigating and cooperated to promote useful contact.

• Court of Appeal (Civil Division): Applications refused. The court declined to reopen Johnson J’s wardship order of 31 July 2001.
• High Court, Family Division: Johnson J ordered that G live with her father and T with their mother, with supervised sibling contact.