A & B (Separate Representation), Re

A child’s separate representation in concluded Hague Convention proceedings should be permitted only where it serves a genuine procedural purpose and the child can properly instruct a solicitor. A proposed application to set aside a return order requires a fundamental change of circumstances which sufficiently undermines the basis of the original decision to require a rehearing. A change which merely repeats matters already considered does not meet that threshold. The decision whether a child should be, or remain, a party is a court decision governed fundamentally by the child’s best interests. A child’s ability to give direct instructions depends on sufficient understanding; the required standard cannot be lowered merely because a sibling is competent. Even where competence is established, separate representation may be refused where the proceedings are effectively concluded and the proposed application has no prospect of success.

The proceedings concerned two American children who had been ordered to return to the USA under the Hague Convention after their mother brought them to England and claimed asylum. The children had been joined as parties because of the parallel asylum proceedings and were represented by a guardian and legal team. The return decision was upheld at the permission stage by Moylan LJ.

The children later applied for separate representation. They relied on changed circumstances, including stronger objections to return, alleged suicidal ideation, increased age and settlement in England. The central issues were whether the children should remain parties, whether either child could give direct instructions, and whether separate representation served any proper purpose.

1. Set aside application. The court applied the high threshold identified in Re B (A Child: Abduction: Article 13(b)) [2020] EWCA Civ 1057. A return order may be set aside only where there has been a fundamental change of circumstances which sufficiently undermines the basis of the original decision and requires a rehearing. The court must prevent an attempt to re-argue an issue already determined through a differently represented party. The relevant comparison was with the June 2024 decision, not the last occasion on which the children had been seen by their guardian. The children’s continuing strong objections, refusal to return and further settlement in England did not fundamentally undermine the earlier decision. The proposed application therefore had no prospect of success.
2. Party status. The decision whether to join a child is exclusively for the court and is fundamentally a best-interests determination, with the factors in PD16A, para 7.2 providing guidance. The children’s standpoint remained aligned with their mother’s, their views could be reported by the guardian and Ms Hansen, and their opposition had already been considered. There was no continuing substantive basis for party status, although the court declined to discharge them because that would have no procedural consequence and might adversely affect them.
3. Separate instructions. Under FPR 2010, r 16.29(2), the starting point was the experienced solicitor’s assessment of whether each child had sufficient understanding to give instructions. B was not considered competent, and separate representation was refused. The court rejected the suggestion that his required level of understanding could be reduced because A might be competent.
4. A was assessed as competent, although the court had serious concerns that his autonomy had been compromised by enmeshment with his mother’s unsubstantiated allegations. Nevertheless, the court could not substitute its assessment for that of the experienced solicitor. Separate representation was refused because the proceedings were effectively concluded, the only proposed purpose was an unarguable set-aside application, and no further party-based purpose existed. Both children therefore remained represented by the guardian and Cafcass Legal.

• High Court (Family Division): The children’s application for separate representation was refused. The judgment records that Moylan LJ had previously refused the mother’s application for permission to appeal against the June 2024 return decision.