F (A Child)

In proceedings for the return of a child under the Hague Convention of 1980 and the Brussels II Revised Regulation, hearing the child and making the child a party are distinct. The obligation to hear the child under article 11 does not itself require party status. Such status remains exceptional. In an ordinary inter-European wrongful-retention case, predictable objections based on settlement, relationships and disruption, or alleged omissions at trial, do not satisfy the high threshold absent a public-law or state-intervention element. The child's rights under articles 6 and 8 of the European Convention, and the six-week process, can be respected without joining the child as a party.

The mother, who had been the unsuccessful respondent before Macur J, filed a notice of appeal after a trial on 31 January. The proceedings concerned the alleged wrongful retention of the parties' seven-year-old daughter in this jurisdiction and arose under the Hague Convention of 1980 and the Brussels II Revised Regulation. The child sought permission to intervene, arguing that she had not been heard below and that her objections to return were rationally based on her settled life in the North East of England. The central issue was whether the circumstances were sufficiently exceptional to justify granting the child party status.

Disposition. The Court of Appeal refused the child's application for permission to intervene, granted the application for an extension of time, and ordered that the appeal be allowed.

1. Exceptional nature of intervention. Thorpe LJ held that granting a child party status in international child-abduction proceedings remains exceptional. The existing Court of Appeal authorities continued to impose a high threshold. The absence of any public-law element or state intervention was significant. A standard inter-European wrongful-retention case did not become exceptional merely because arguments might have been omitted at trial or because the child later expressed rational objections to return.
2. Effect of Re D. The court rejected the submission that Re D had lowered the threshold. Baroness Hale's description of circumstances in which separate representation might be appropriate did not displace the established exceptional standard. The court understood Re D as disapproving an increased European threshold, while leaving the existing high threshold in place. Smith LJ and Munby J agreed with Thorpe LJ.
3. Hearing the child. The requirement under article 11 of the Brussels II Revised Regulation to hear the child, unless inappropriate having regard to age and understanding, was distinct from granting party status. The child's rights under articles 6 and 8 of the European Convention could be respected without intervention.
4. Summary procedure. The six-week obligation governing the trial process reinforced the need to avoid unnecessary enlargement of representation and procedural complexity. The child's predictable concerns about family, community and school did not satisfy the high test.

1. Court of Appeal (Civil Division). In [2007] EWCA Civ 393, the court refused the child's application to intervene, granted an extension of time, and ordered that the appeal be allowed.
2. Principal Registry of the Family Division. Macur J conducted the trial on 31 January. The mother was the unsuccessful respondent below. No citation for the lower-court decision was stated in the judgment.