B (A Child)

In Hague Convention return proceedings, the presence of a public law element is a material consideration when deciding whether a child should have separate representation. An arguable ground for appellate intervention may arise where insufficient weight has been given to that element, particularly where the proposed return would place the child within a foreign care system. Hague cases require urgent case management, and delay may justify a further hearing on short notice.

The mother sought the return of her 14-year-old child to Norway under the Hague Convention. The father, who cared for the child in England, opposed the return. Charles J refused the child separate representation and subsequently refused permission to appeal, after considering the House of Lords’ judgments in Re M & Anor (Children) [2007] UKHL 55. The application before the Court of Appeal concerned whether the refusal arguably failed to give sufficient weight to the public law element arising from the proposed return to the Norwegian care system.

Application adjourned. Thorpe LJ considered that the applicant had demonstrated a ground on which the Court of Appeal might interfere with the judge’s discretionary refusal of separate representation. The apparent error was that insufficient weight had been given to the public law element in the case.

1. Authorities in the Court of Appeal indicated that separate representation had principally been permitted in Hague Convention applications involving a public law element. The fact that a return order would send the child into the Norwegian care system was therefore material.
2. Charles J had reconsidered his decision after the judgments in Re M & Anor (Children) [2007] UKHL 55 became available. He had considered that his approach accorded with that decision and that it would not alter his conclusions. The Court of Appeal did not finally determine the merits of the proposed appeal at this stage.
3. The application was adjourned for a further oral hearing on notice to the parties, with the appeal to follow if permission were granted. Short notice was justified by the need to avoid further delay in a Hague case and to secure final disposal at the beginning of the Hilary term. The mother was invited to reconsider whether she would consent to the child’s representation.

Wall LJ agreed with the proposed course and added nothing. The formal order was that the application be adjourned.

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 1516, the application for permission to appeal was adjourned for a further oral hearing, with any appeal to follow if permission were granted.
2. High Court, Family Division (Charles J): Refused separate representation for the child and subsequently refused permission to appeal.