KP, Re

A judicial meeting with a child in Hague Convention proceedings is primarily for the child’s benefit. It enables the child to communicate directly with the judge and to understand the court’s task. The meeting must not be used to gather or test evidence.

The judge should ordinarily receive the child’s communication passively. If the child volunteers potentially relevant evidence, the judge should inform the parties and determine how it may properly be adduced. Evidence relied upon must be handled consistently with procedural fairness and the parties’ right to participate. A return order cannot stand where the judge’s questioning crosses into evidence gathering and the resulting material becomes pivotal to the assessment of the child’s objections.

A mother wrongfully removed her 12-year-old daughter from Malta to England. In proceedings under the Child Abduction and Custody Act 1985, she resisted summary return by relying on the child’s objections and the grave-risk exception in article 13(b) of the Hague Convention.

The child had expressed strong objections during an interview with a specialist CAFCASS officer. During the final hearing, Parker J met the child for more than an hour and asked approximately 87 questions. The judge subsequently treated the meeting as an opportunity to probe the child’s views, rejected the CAFCASS officer’s recommendation and ordered the child’s return.

The mother appealed. The child was joined and separately represented on the appeal. The central issue was whether the judicial meeting had crossed the boundary between hearing the child and gathering evidence upon which the court relied.

1. The appeal was allowed. The return order was set aside and the proceedings were remitted for an urgent rehearing before a different Family Division judge.

2. There is a presumption that a child will be heard in Hague Convention proceedings unless that is inappropriate. Hearing the child means listening to the child’s point of view. The usual channels are a specialist CAFCASS report, a face-to-face judicial meeting or, in the few cases requiring it, party status and legal representation. In most cases a specialist CAFCASS interview will suffice. The principles in Re D [2006] UKHL 51 were applied.

3. A judicial meeting has two legitimate purposes. It permits the judge to hear what the child wishes to volunteer, and it allows the judge to explain the nature of the proceedings and why the order may differ from the child’s wishes. During the former part of the meeting, the judge should ordinarily act as a largely passive recipient. The meeting is not an occasion to probe, test or evaluate the child’s account, or to invite representations or submissions. Evidence gathering remains the responsibility of appropriately skilled professionals.

4. If a child volunteers information which may affect the result, the judge should report it to the parties and decide whether and how it should be adduced. Any evidence upon which the court will rely must be handled consistently with article 6 of the ECHR and rule 1.1 of the Family Procedure Rules 2010. The process must be fair and place the parties on an equal footing. Where determinative evidence requires exploration, an age-appropriate evidential process should be used, consistently with Re LC [2014] UKSC 1.

5. The judge’s hour-long questioning went substantially beyond passive listening and became evidence gathering. The resulting material was pivotal to her conclusions that the child’s objections lacked rationality and that the child would accept a return with support. Because that material went to the heart of the decision, the analysis and return order could not stand.

1. Court of Appeal (Civil Division): The mother’s appeal was allowed in [2014] EWCA Civ 554. The return order was set aside and the case was remitted for rehearing before a different Family Division judge.

2. High Court, Family Division: Parker J ordered the child’s return to Malta at the conclusion of proceedings under the Child Abduction and Custody Act 1985. No citation for that decision is stated.