AL v DA

In high-conflict private-law children proceedings, an 11-year-old child required joinder and separate representation by an independent guardian where the conflict created a clear need for the child’s own voice to be investigated and represented. The court should not make a profound and potentially irreversible interim change to established living or schooling arrangements on sparse information and hurried investigation. Directions for forensic expert evidence should not be made before the required preparatory steps have been taken and, where a guardian is appointed, without first considering the guardian’s views. Parents remain free to agree lawful therapeutic assistance for their child. The court also stressed the importance of mediation in prolonged parental conflict.

The application concerned an 11-and-a-half-year-old boy whose parents had never married. The child lived with his father in England under arrangements established after earlier litigation, while his mother lived in France and had extensive periods of time with him.

The mother applied for the child to move to France and attend school there, relying principally on material said to demonstrate his wishes and distress. At this directions hearing she sought an urgent interim hearing. The father opposed that course, questioned whether a guardian was necessary, and sought directions for psychological or psychiatric investigation. The issues were whether the child should be joined and separately represented, whether a guardian should be appointed from the CAFCASS High Court Team, whether an urgent interim hearing or expert investigation should be directed, and how the case should proceed.

1. Guardian. The child was to be joined as a party and separately represented by an independent guardian. Given the intensity and potentially damaging effect of the parental conflict, a child of this age needed an independent voice whose wishes and feelings could be properly investigated and represented. The guardian was to be appointed from the CAFCASS High Court Team, subject to express safeguards excluding the previous guardian from any involvement or communication concerning the case.
2. Urgent interim relocation. The court refused to fix an interim hearing within the next two to three weeks. A sudden change to arrangements established over many years, including residence and schooling, would be potentially pre-emptive and difficult to reverse. Profound decisions affecting a child’s life should be made only after proper investigation and consideration, not on sparse information and hurriedly assembled evidence.
3. Expert evidence and therapy. The court refused the father’s application for directions for psychiatric, psychological or multidisciplinary investigation. The preparatory steps required by the applicable rules and practice direction had not been taken. More importantly, once a guardian was being appointed, it would be inappropriate to direct forensic examination of the child before hearing the guardian’s views. The parents remained free to agree and obtain lawful therapeutic assistance; the refusal concerned evidence gathering for the proceedings, not treatment.
4. Case management and mediation. The final hearing was fixed for the week commencing 24 November 2014, with five clear days allowed. The mother was directed to provide an undertaking, without prejudice to her position, to return the child from the proposed holiday in India by the beginning of September. The court urged the parents to pursue mediation or a similar confidential process, notwithstanding earlier unsuccessful attempts, because further litigation risked causing substantial emotional harm to the child.

First-instance directions decision. No appellate history is stated in the judgment.