Re D (A Child) (Abduction: Child's Objections: Representation of Child Party)

A solicitor-guardian’s non-expert opinions are not subject to a blanket rule of inadmissibility. Under Civil Evidence Act 1972, section 3(2), an opinion which conveys facts personally perceived may be admitted, although its weight depends on the circumstances. A court must assess such evidence on its merits and must not reduce it to negligible weight because the solicitor-guardian should not, in principle, have expressed an opinion.

In a child-objections case under the 1980 Convention, a Gillick-competent child’s views require due regard but are not determinative. A court may give them little weight where they are influenced by a parent. Party status for a child remains exceptional; ordinarily, a Cafcass report will sufficiently convey the child’s views.

The mother sought the summary return of D, aged 13, to Singapore under the 1980 Child Abduction Convention after the father retained him in England following a holiday visit. D was joined as a party and acted through a solicitor who was also appointed his guardian.

The Deputy High Court Judge found that D objected to return but made a return order. He held that the father had exerted undue influence and gave negligible weight to the solicitor-guardian’s opinions about the strength and provenance of D’s views, preferring the Cafcass officer’s evidence.

D appealed. The principal issue was whether the judge’s treatment of the solicitor-guardian’s evidence, including his view that such opinion evidence was inadmissible or improper in principle, rendered the discretionary return decision unsafe.

1. Appeal allowed. Moylan LJ, with whom King and Elisabeth Laing LJJ agreed, held that the return order could not stand and the case had to be reheard.

2. The judge did not merely prefer the Cafcass officer’s evidence on its merits. His decision to give negligible weight to the solicitor-guardian’s evidence was materially founded on the view that the solicitor should not have given opinion evidence and that such evidence was inadmissible. That approach was wrong and tainted the discretionary decision.

3. Section 3(2) of the Civil Evidence Act 1972 permits non-expert opinion evidence where it conveys relevant facts personally perceived by the witness. There is no blanket rule preventing a factual witness from expressing such an opinion. Ciccone v Ritchie did not establish such a rule for solicitor-guardians; it identified practical difficulties and explained why a Cafcass assessment was appropriate in that case.

4. The issue had also been raised by the judge during the final hearing, without prior objection to the evidence. That affected the fairness of the proceedings because the parties had no proper opportunity to address it. Although there were powerful factors favouring return, the Court of Appeal could not fairly re-make the discretionary decision and a return order was not inevitable.

5. The remaining grounds lacked substantive merit. A Gillick-competent child’s views are one factor in the Convention discretion. They are not presumptively determinative, and little weight may properly be given where the views have been influenced by inescapable parental pressure and a threatened separation.

6. The matter was remitted to a nominated Family Division judge for rehearing, subject to a welfare resolution. D was to be seen by a Cafcass officer if no agreement was reached; case management would determine whether the solicitor-guardian could give further evidence.

• Court of Appeal (Civil Division): Allowed D’s appeal in [2023] EWCA Civ 1047, set aside the return order and remitted the application for rehearing.
• High Court of Justice, Family Division: Mr Dexter Dias KC, sitting as a Deputy High Court Judge, made a return order on 26 May 2023 after finding that D objected to return but exercising the discretion in favour of return.