H (A Child)

In Hague Convention return proceedings, a child should be joined as a party and separately represented only in exceptional circumstances requiring compelling grounds. That high threshold is not relaxed because domestic private-law proceedings may permit more liberal child participation. Hague proceedings are summary and do not determine welfare, which ordinarily belongs to the courts of the child’s habitual residence. The central question is whether the child’s Article 13(b) case can be fairly presented. Separate representation is unnecessary where suitable arrangements, such as a specialist CAFCASS officer’s report or a statement, place the child’s views fully before the judge. Age and a parent’s lack of knowledge of the reasons for opposition generally concern the strength of the defence rather than the form of participation.

A 15-year-old child whose settled home was with her mother in South Africa remained in England after holiday contact and opposed return. Her mother brought Hague Convention proceedings. The father relied on the Article 13(b) defence, and the child applied to be joined as a party so that her views and objections could be advanced directly.

The deputy judge refused joinder, holding that a specialist CAFCASS officer could communicate the child’s views to the trial judge. The Court of Appeal granted permission to challenge both the exercise of discretion and the established exceptional-circumstances test. The central issue was whether separate representation was required for the child’s voice and Article 13 defence to be properly heard.

The appeal was dismissed unanimously.

1. The Court of Appeal upheld the deputy judge’s careful decision. The jurisdiction to join a child in Hague Convention proceedings exists, but it should be exercised very rarely. Exceptional circumstances and compelling grounds remain necessary. The Court refused to relax that threshold and followed the established line of authority beginning with Re M (A Minor) (Child Abduction) [1994] 1 FLR 390.
2. Hague return proceedings are summary proceedings, not a welfare enquiry. Subject to an Article 13 defence, medium- and long-term welfare is ordinarily for the courts of the child’s habitual residence. The more liberal approach to participation in domestic proceedings under the Children Act 1989 and the Family Proceedings Rules did not govern Hague proceedings. Rule 9.2(a) operated only after party status had been obtained.
3. The relevant question was whether separate representation was required for the child’s voice and Article 13 defence to be properly heard. Here, the specialist CAFCASS officer had discussed the material with the child, recorded her views clearly, and could provide them to the trial judge. She could also submit a statement. Separate representation was therefore unnecessary.
4. The child’s age, including her proximity to the age at which the Convention ceased to apply, and the father’s asserted lack of knowledge of her reasons for opposing return went to the likely strength of the Article 13 defence, not the manner in which it should be advanced. They did not amount to exceptional or compelling circumstances.
5. The Court confined Re T [1999] 2 FLR 796 to a quasi-public-law setting involving state care and state participation. Lord Justice Wall expressed some doubts about that decision, but held that it did not derogate from the established rule.
6. Lord Justice Thorpe added that the need for expedition under the 1980 Hague Convention and Brussels II Revised required courts to streamline procedure while preserving natural justice and a fair trial under the common law and Article 6 of the Human Rights Convention.

• Court of Appeal (Civil Division): Appeal from the Principal Registry of the Family Division dismissed on 20 July 2006. The refusal to join the child as a party was upheld: [2006] EWCA Civ 1247.
• Principal Registry of the Family Division: Mr Jeremy Richardson QC, sitting as a deputy judge, refused the application for joinder on 9 June 2006 and refused permission to appeal. Wilson LJ subsequently granted permission on both grounds on 5 July 2006.