C v M (A Child) (Abduction: Representation of Child Party)

Children should only rarely be joined as parties to proceedings under the 1980 Hague Child Abduction Convention. Their views will usually be conveyed adequately through a Cafcass report. Absent strong reasons, the child should be seen by the Cafcass High Court Team before party status is decided.

Non-expert opinion evidence is admissible where it conveys relevant facts personally perceived by the witness. Pending wider review, a solicitor-guardian should generally confine evidence to the child’s perspective and instructions, apart from explaining the child’s competence. Express prior permission is required before giving wider opinion evidence.

Where a mature child objects to return, the court has a broad discretion. It must assess the objections, authenticity, welfare considerations and Convention policy. The weight assigned to those matters is primarily for the trial judge.

The father applied under the 1980 Hague Child Abduction Convention for the summary return to Mauritius of two children whom the mother had wrongfully removed to England. The High Court initially ordered their return in C v M [2023] EWHC 208 (Fam). After the older child, X, was joined as a party and represented through a solicitor-guardian, that order was set aside in C v M & Another (Hague Abduction: Application for Re-hearing) [2023] EWHC 1482 (Fam).

Following a rehearing, the High Court dismissed the application in C v M and another [2023] EWHC 1182 (Fam). It exercised its discretion against returning X because of her objections and found the Article 13(b) defence established for both children.

The father appealed, principally challenging the refusal of an adjournment, the absence of an updated Cafcass report, reliance on opinion evidence from X’s solicitor-guardian, and the exercise of discretion. The appeal also raised wider questions about children’s party status and the proper evidential role of solicitor-guardians.

1. Appeal dismissed unanimously. The judge was entitled to refuse an adjournment and determine the rehearing without a further Cafcass report. The need for such a report had previously been considered, and the father changed his position on separating the children only immediately before the hearing. The proposed wider welfare inquiry was inconsistent with the summary nature of Convention proceedings.

2. The father could not challenge the admissibility, relevance or weight of the solicitor-guardian’s evidence for the first time on appeal. That evidence had been admitted and relied upon without objection below. The father had himself referred to it, and neither the solicitor-guardian nor the headteacher had been required for cross-examination. In any event, non-expert opinion evidence conveying facts personally perceived by a witness was admissible under sections 3(2) and 3(3) of the Civil Evidence Act 1972, while hearsay opinion evidence was admissible under sections 1 and 13 of the Civil Evidence Act 1995.

3. The judge was entitled to find that the nature and quality of X’s objections had changed and to determine the weight of all the evidence. The discretion arising from a mature child’s objections is broad. It encompasses Convention policy, the nature and strength of the objections, their authenticity, parental influence, the child’s rights and welfare, and the child’s age and maturity. The judge considered the protective measures, wrongful removal, Convention policy, sibling relationship and the father’s relationship with the younger child. Her analysis disclosed no material omission or disproportionate weighting.

4. Children should only rarely be joined as parties to Convention proceedings. Their voices will ordinarily be conveyed adequately by a Cafcass officer. Although party status must be considered at the first substantive directions hearing, it is advisable, absent strong reasons, for the child to be seen first by the Cafcass High Court Team.

5. Pending wider review, solicitor-guardians should not provide opinion evidence beyond what is necessary to explain why the child is competent to instruct them. They should ordinarily confine their evidence to the child’s perspective and views as relayed through instructions. Wider opinion evidence, including assessments of the strength, authenticity or parental influence upon objections, requires the court’s express advance permission. Those evaluative matters are properly the task of Cafcass.

6. The judge was not required to insist that the mother state whether she would accompany the younger child if he alone were ordered to return. The remaining grounds disclosed no substantive error. The order dismissing the father’s return application therefore stood.

1. Court of Appeal (Civil Division): The father’s appeal was dismissed unanimously: [2023] EWCA Civ 1449.
2. High Court, Family Division: On rehearing, Theis J dismissed the application for the summary return of both children: [2023] EWHC 1182 (Fam).
3. High Court, Family Division: Theis J set aside the original return order after X was joined as a party: [2023] EWHC 1482 (Fam). Permission to appeal that decision was refused.
4. High Court, Family Division: Theis J initially ordered the summary return of both children: [2023] EWHC 208 (Fam).