MC v SC

In Hague Convention proceedings, the question whether a child should be separately represented is whether that representation will add enough to the court’s understanding of the Convention issues to justify the intrusion, expense and delay. The court should apply that test without reverting to an inflexible exceptional-circumstances requirement.

For a child outside the Convention’s scope, the court applies welfare principles under the inherent jurisdiction. In deciding whether children should be joined and separately represented, the court should consider their age, understanding, distinct views or arguments, the effect of participation or exclusion, and the practical consequences for delay and expense.

The father sought the summary return of five children after their removal from France to England and Wales. Four older children applied to be joined as parties and to have separate representation. The eldest child was 16 and therefore outside the scope of the Hague Convention by reason of Article 4. The younger children were subject to the Convention proceedings and raised views and possible arguments distinct from those advanced by either parent.

The central issues were the applicable test for joinder and separate representation in Convention proceedings, the different welfare-based approach applicable to the eldest child, and whether the children’s independent participation would materially assist the court.

1. Convention proceedings. The governing test, derived from Re M (Children) (Abduction) [2007] UKHL 55, was whether separate representation would add enough to the court’s understanding of the Hague Convention issues to justify the intrusion, expense and delay. The court declined to recast that test in the language of earlier exceptional-circumstances authorities.
2. Non-Convention proceedings. The eldest child’s position was governed by welfare principles under the inherent jurisdiction, not solely by analogy with Convention principles. The court could order return without a full merits investigation, but welfare remained paramount. The child was entitled to instruct a solicitor directly because the conditions in rule 9.2A(b) of the Family Proceedings Rules 1991 were satisfied.
3. Joinder and representation. Rule 9.5 of the Family Proceedings Rules 1991 required consideration of whether joinder was in the child’s best interests. Under rule 9.2(1), a joined child under a disability was ordinarily represented by a guardian ad litem, subject to the applicable exception. The children had distinct views and possible arguments concerning habitual residence, the Article 13(b) defence and possible separation of siblings. Independent representation would therefore assist the court.
4. Intrusion, expense and delay. The children were older, articulate, close in age and already aware of the dispute. Their exclusion was more likely to cause emotional harm than their participation. The application had been made promptly, and representation of the younger children would cause minimal additional expense or delay.
5. All four children were joined as parties. The three younger children were to be represented by a guardian ad litem, with an invitation to Cafcass to consider accepting the appointment and instructing the same solicitor for all four children.

First-instance decision of the High Court (Family Division). The judgment records no appeal or earlier decision in this litigation.