M (Children) (Abduction: Joinder of Children)

In Hague Convention proceedings, joinder of children is determined by their best interests. An older child’s opposition to return is relevant but is not, by itself, decisive. The court should consider the guidance in Practice Direction 16A, including whether the child’s interests cannot be represented by an adult party, whether the child’s views cannot adequately be conveyed by a report, the strength of opposition, and conflicts between siblings’ welfare. Where joinder is ordered, a solicitor appointed as guardian assumes the guardian’s responsibilities. The role extends beyond communicating the child’s instructions and includes drawing relevant welfare matters to the court’s attention.

The proceedings concerned the summary return to Canada of four children under the 1980 Hague Convention. The mother initially appeared likely to return with the children, but after a Cafcass report she stated that she would not do so. The two older children then instructed a solicitor and applied to be joined as parties, asserting that return would expose them to separation from their mother, residence with their father or foster care, and possible separation from their younger siblings.

The application raised whether the older children’s views were adequately represented through Cafcass, whether the circumstances fell within the guidance in Practice Direction 16A, and whether joinder was in their best interests.

1. Application granted. The two older children were joined as parties to the Hague Convention proceedings. The final hearing was adjourned for a short period to enable their legal team to prepare further evidence.
2. Under FPR r 16.2, the decisive question was whether joinder was in the children’s best interests. The examples in PD16A, para 7.2, provide guidance but are not binding. The relevant circumstances included an unrepresented or inadequately represented standpoint, an inadequate report of the children’s current views, strong opposition by an older child, and conflict between the welfare interests of different children.
3. The older children’s opposition was not by itself decisive. However, the strength of their opposition, including one child’s stated unwillingness to comply with a return order, materially distinguished the case from the ordinary child-objection case. The mother could not adequately represent their interests because she was subject to criticism concerning her changed position and lacked first-hand knowledge of matters relied on by the children. The Cafcass report was no longer adequate because the factual premise that the mother would return had changed.
4. Delay and the risk of embroiling the children in the parental dispute were important countervailing considerations. They were outweighed because the hearing could be relisted promptly and the children faced potentially serious consequences, including separation from their mother, residence with their father or in foster care, and separation from siblings.
5. The solicitor, Mr Netto, was appointed to act both as solicitor and guardian. This was justified by the short timetable and the children’s existing instructions to him. A solicitor acting as guardian must assume the responsibilities of that office. Under PD16A, para 7.6, decisions must be taken for the child’s benefit and the role is not confined to advancing the child’s instructions; it includes bringing relevant welfare issues, including possible manipulation, to the court’s attention.

This was an interlocutory first-instance decision in Hague Convention proceedings. No appellate history was stated in the judgment.