O (A Child), Re

In child relocation proceedings, the court should hold back from joining a child as a party unless the case presents an issue of significant difficulty under PD 16A of the Family Procedure Rules. Full independent advocacy is not required in every case. Complexity, permission to appeal, or a child’s wishes differing from those of a parent will not alone justify joinder. A proportionate wishes-and-feelings assessment by the Cafcass High Court team may suffice, while leaving open the possibility of separate representation if the assessment identifies a need for it.

The father appealed against an order made by His Honour Judge Cryan on 28 August 2012, which permitted the mother of H, a young girl, to move with her to Southern Ireland. Permission to appeal had been granted. At this directions hearing, the parties agreed that H’s current wishes and feelings should be obtained before the appeal was determined.

The father sought H’s joinder as a party, with an independent child solicitor to assess her competence and advocate her position, or alternatively a Cafcass guardian and advocate. The mother accepted the need for a fresh independent assessment but submitted that Cafcass involvement was sufficient. The issue was whether H’s circumstances amounted to an issue of significant difficulty requiring party status.

The application to join H as a party was refused. The court directed the Cafcass High Court team to undertake a fresh wishes-and-feelings exercise, with the appeal to be determined before the end of the current legal term.

1. H’s current wishes and feelings needed to be before the court. That deficit could properly be addressed by a skilled independent professional, such as a member of the Cafcass High Court team.
2. PD 16A of the Family Procedure Rules, particularly paragraphs 7.1 and 7.2, required restraint before making a child a party. The listed circumstances were illustrative rather than exhaustive, but the threshold was an issue of significant difficulty.
3. Although independent legal representation might provide a more comprehensive process, the court had to assess whether that provision was proportionate and justified in the particular case. H was not positively seeking party status, and the limited information available suggested that she had previously felt pressured and confused when asked to express a view.
4. The fact that H had an independent view, that it differed from her mother’s position, that the case had some complexity, and that permission to appeal had been granted did not, individually or cumulatively on the information before the court, take the case beyond the threshold. Those features could not justify joining the child in every comparable appeal.
5. The Cafcass High Court team was to receive concise information from the parties about the two possible living arrangements and consequential contact arrangements. It remained open to the team to conclude that H required separate representation, which would bring the case within the relevant category identified in PD 16A. The operative order was: application refused.

1. Court of Appeal (Civil Division): At a directions hearing reported at [2012] EWCA Civ 1576, the court refused the father’s application to join H as a party and directed a fresh Cafcass wishes-and-feelings assessment.
2. Principal Registry Family Division: On 28 August 2012, His Honour Judge Cryan permitted the mother to move with H to Southern Ireland. The father obtained permission to appeal that determination.