D (Children)

In private-law children proceedings concerning removal from the jurisdiction, separate representation is exceptional rather than the ordinary course. The statutory discretion and applicable practice guidance permit the judge to decide whether representation is required. An appellate court considering permission to appeal does not substitute its own view. It asks whether the judge erred in law or exercised the discretion outside the ambit of reasonable disagreement. A litigant in person must be assisted so that his case is properly presented, but that does not itself establish that the children require separate representation. Current law does not require all children in such applications to have their own representatives.

The father opposed the mother’s application for permission to remove their two children permanently from England and Wales to Slovakia. After an earlier hearing before a district judge was set aside because relevant CAFCASS evidence had not been properly considered, Mrs Recorder Corbett ordered a rehearing and refused the father’s request for separate representation of the children.

The father sought permission to appeal that refusal. He argued that, as a litigant in person, he could not adequately present the children’s interests and that the children’s interests were insufficiently represented. The issue was whether the Recorder had erred in law or exceeded the proper ambit of her discretion.

1. Application refused. The Court of Appeal’s function on an application for permission to appeal against a discretionary decision was limited. It had to ask whether the Recorder had made an error of law or exercised her discretion outside the area of reasonable disagreement. The Court’s own view that it might have directed separate representation at first instance was not the test.
2. The Recorder had considered the President’s Practice Direction of 5 April 2004 concerning representation of children in family proceedings, issued pursuant to Family Proceedings Rules 1991, r 9.5. She had considered the examples of circumstances in which separate representation may be appropriate and was entitled to conclude that none applied.
3. The father’s status as a litigant in person did not make separate representation necessary. The children’s wishes and feelings, forming part of the welfare checklist under Children Act 1989, s 1(3), could be addressed through up-to-date evidence from the CAFCASS Reporting Officer. The Recorder had directed that such evidence should be available at the rehearing.
4. Separate representation in private-law removal applications was the exception rather than the rule. The Recorder had neither erred in law nor strayed outside the proper ambit of her discretion.
5. Although the application failed, the father was encouraged to attend the rehearing and present fully the facts, wishes and concerns relevant to the children’s welfare and the proposed move. A judge had a particular duty to assist a litigant in person and ensure that his case was properly put.

The Court directed that a copy of its judgment be made available to the father, the judge and the parties’ advisers.

• Court of Appeal (Civil Division): application for permission to appeal refused.
• Luton County Court: Mrs Recorder Corbett, on 8 May 2009, allowed the father’s appeal from the earlier district judge decision and ordered a rehearing; she refused the request for separate representation of the children.
• Luton County Court: the earlier district judge hearing had failed properly to deal with an historic CAFCASS report, with the result that the matter was ordered to be reheard.