D (A Child)

Leave for a child to intervene in an appellate family appeal is exceptional and requires a proportionate assessment. The court must balance the child’s opportunity to have views placed before it against fairness to the respondent and the fact that the parties may already be adequately represented. A distinction may be drawn between receiving a child’s views and permitting elaborate argument on the child’s behalf. Even where formal intervention is refused, the court may exceptionally obtain a brief report of the child’s views where the child has become materially involved in the litigation.

This was an application by a seven-year-old child for leave to intervene in a pending appeal concerning his return to Romania. In the Family Division, the mother had failed on her case that the removal was not wrongful and on an Article 13(b) defence. Her notice of appeal appeared to challenge only the judge’s finding on the Article 3 defence, although her counsel’s skeleton argument was equivocal. The application concerned the extent and form of the child’s participation at the appellate stage, including whether his views should be obtained without permitting full argument on his behalf.

Application refused. Lord Justice Thorpe treated an affected child’s application to intervene at the appellate stage as rare, with grants rarer still. The discretion had to be exercised proportionately. Relevant considerations included the fact that two leading counsel already represented the parties and that fairness was owed to the respondent as well as to the child.

1. The court should distinguish between placing the child’s views before it and permitting elaborate argument on the child’s behalf. The child’s participation could therefore be facilitated without granting full leave to intervene.
2. The mother’s Article 13(b) case below had focused on disruption to the child. That created some overlap with the case the child sought to advance, while the child’s young age and the mother’s passionate involvement raised the possibility of influence.
3. As an exceptional measure, the court directed a CAFCASS officer to meet the child and submit a brief report on his views for the pending hearing. This was justified because the child had been drawn into the litigation process, had obtained specialist legal assistance and had been seen twice by an experienced practitioner. The direction would ensure that he was not disregarded as an independent person.
4. Lord Justice Thorpe indicated that the court might be indulgent towards an application to amend the notice of appeal and skeleton argument in light of subsequent developments, but no amendment was determined.

The formal order was that the application be refused.

• Court of Appeal (Civil Division) ([2006] EWCA Civ 760): application by the child for leave to intervene refused; an exceptional CAFCASS report was directed.
• Family Division, Principal Registry: before Mr Justice Hogg, the mother’s wrongful-removal and Article 13(b) defences had failed. A pending appeal included a challenge to the Article 3 finding.