B (A Child)

Separate representation for a child in Hague Convention return proceedings may be required where materially new information reveals exceptional circumstances and a risk of injustice without it. The appellate court need not criticise the lower court’s careful exercise of discretion where the relevant circumstances have changed or were unavailable below. Where influential expert evidence is expected, the child should have a fair opportunity, through representation, to comment on, challenge or adopt that evidence. A late or inadequate defence may reinforce the need for representation, although it may not alone justify appellate interference. Hague proceedings should remain swift and summary.

The child, Zaen, aged 14, ordinarily lived with his mother in Norway and had remained in England after a contact visit to his father. Hague Convention proceedings concerning his return were pending in England, while contact proceedings continued in Norway. Charles J refused the child’s application for separate representation on 3 December 2007.

On appeal, further information emerged that the Norwegian court’s clinical psychologist, who had extensive experience of the family, would interview Zaen in England and prepare a report before the English hearing. The central issue was whether, in light of that new information and the late allegation of maltreatment, justice required Zaen to be separately represented.

Appeal allowed. Separate representation was granted.

1. Materially changed circumstances. The Court of Appeal would not have interfered merely because it disagreed with Charles J’s careful exercise of discretion. The appeal succeeded because important information had emerged on the appeal which had not been available to the judge below. In the exceptional circumstances revealed, anything less than separate representation risked injustice.
2. Expert evidence and fairness. The Norwegian court’s clinical psychologist had 18 months’ experience of the family and was to interview Zaen in England before preparing a report. That evidence was likely to be highly influential in both proceedings. Since each parent would have the opportunity to comment on, challenge or adopt the report, it would be plainly unjust for Zaen not to have the same opportunity. Continuing representation by Mrs Usher was also useful in securing the prompt transmission and admission of the evidence.
3. Article 13(b) defence. The father had amended his defence to allege physical and emotional maltreatment in the maternal household. Lord Justice Thorpe would not have allowed the appeal on that ground alone. Lord Justice Wall considered that separate representation was the only mechanism by which Zaen’s defence could properly be placed before the judge.
4. Case management. Hague proceedings are intended to be swift and summary. The Court directed that the January hearing should not be adjourned and criticised the delay and the very late, unsatisfactory amendment of the father’s defence. Lord Justice Wall stated that the decision did not open the floodgates, did not disapprove Charles J’s approach, and resiled from nothing said in Re: H (A Child) [2006] EWCA Civ 1247.

Order: Application granted; appeal allowed.

• Court of Appeal (Civil Division): Appeal allowed and separate representation granted on the basis of material information emerging on appeal.
• Family Division, Principal Registry: Charles J refused separate representation for the child on 3 December 2007.