England and Wales High Court (Family Division) Decisions

THE HONOURABLE MR JUSTICE BAKER

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/12/2009

MR. JUSTICE BAKER:

Introduction

1. C W, born on 9 January 1992 and therefore now aged 17 but rising 18, applies to this court to be joined as a defendant to proceedings brought by her father, M W, ("the father") under the Child Abduction and Custody Act 1985 and the Hague Convention on the Civil Aspects of International Child Abduction 1980, and in the alternative under the inherent jurisdiction, for the summary return to Australia of her brother, L, born 26 April 1998 and therefore aged 11. The first defendant to the application is V W, the mother of C and L who, it is accepted, brought L to England earlier this year without the consent of the father.
2. The father's application is listed for a full hearing (at risk) on 11 December 2009. C's application issued on 3 December, was initially listed before me sitting as the applications judge in the Family Division on 4 December but adjourned for want of time until 8th December. At the conclusion of the hearing, I indicated that I would make the order sought by C and would give the reasons for my decision as soon as possible. In addition, I gave further directions for the hearing on 11 December.
3. In this judgment, I now set out the reasons for my decision to join C as a defendant. I say at the outset that I have been greatly assisted by the written and oral submissions made by three members of the specialist child abduction Bar, namely Mr Edward Devereux on behalf of C, Mr David Williams on behalf of the father and Miss Jacqueline Renton on behalf of the mother.

Summary of background

4. It is unnecessary for the purposes of this judgment to recite the family history in any great detail. The father and mother are both Australians. The father is 46 years old and the mother 43. C was born 9 January 1992 and is therefore aged 17, rising 18, and L was born 26 April 1998 and is therefore now aged 11. According to the mother and C, the father was regularly abusive, and occasionally violent, throughout the marriage. The mother's allegations include claims that the father raped her on numerous occasions. The mother asserts that the parties separated in 2007 but that the father continued to visit her and the children and continued to be abusive and domineering to all members of the family, including L.
5. Following an incident on 9 June 2009 when, according to the mother, the father was violent towards her, the children and the maternal grandmother, she applied to the local court in Western Australia for a Violence Restraining Order. However, before the return date for her application, the mother left the home and Western Australia accompanied by L and C and, without the father's knowledge or consent, brought the children to England. On 13 August 2009 the father applied to the Perth Magistrates Court for injunctions preventing the mother from removing both children from Australia. A few days later, his Australian solicitors received information from the maternal grandmother in England stating that the mother and children were now living in this country.
6. On 2 November 2009, the father issued an originating summons under the Child Abduction and Custody Act 1985, and under the inherent jurisdiction, for an order for the summary return of L to Australia. On that day Roderic Wood J made location and disclosure orders and gave directions in the proceedings. At the next hearing on 13 November before Macur J, both the father and the mother were represented by counsel and the learned judge gave directions, including (a) listing the final hearing for 11 December 2009 with the time estimate one day at risk; (b) extending the time for the filing of the Defence to 23 November; and (c) directing an officer of the Cafcass Abduction team to interview "the children [sic] and prepare a report addressing his wishes and feelings and any objection he may have to returning to Australia" and to file and serve a report by 9 December. On 30 November, the mother filed a Defence relying on Article 13(b) of the Convention. On the same day, the matter came before me sitting as the applications judge when, on the application by the mother, I gave leave to her to file a report from Dr Kolkiewicz, consultant psychiatrist, as to the psychological impact on her of an order for the return of L to Australia. On 3 December 2009 C issued this application.

C's reasons for being joined as a party

7. An affidavit has been filed by Miss Nina Hansen a partner in Messrs Freemans Solicitors, in support of C's application in which she states, inter alia, as follows.

(1) C is a bright, articulate young woman who is without doubt competent and able to give instructions.

(2) C informed Miss Hansen that if the Court ordered L's return to Australia, her mother would follow and then so would she, otherwise no one will be there to protect her brother or mother. She was extremely concerned as to their welfare and her own.

(3) C told Miss Hansen that she could not remember when her parents did not argue and fight, and that her father was an extremely domineering man and when annoyed he would take it out on either her (in the last few years) or her mother or both of them.

(4) Given the level of violence in the home, C always tried to keep L by her side to protect him and keep him away from it all. He is six years younger and she has always protected him as much as she was able. They are very close.

(5) When asked by Miss Hansen whether her father had been physically violent to her, C said "yes". The first time was when she was eleven years old. She had come home from school to find her parents arguing and had shouted at them to stop. Her father had told her it was none of her business, C had replied "yes it is, I live here" and her father smacked her across the face. She described to Miss Hansen how her father had seemed to lose control and was beating and punching her all over her arms and legs and then threw her across the room onto a sofa and continued hitting her. After this incident, C said that she was bruised all over her arms and legs.

(6) C described to Miss Hansen how the fights and beatings continued for a number of years until eventually her mother got the courage to separate from her husband and the three of them left the family home in 2006 when C was about fourteen. However, she said that this did not last for long as her father visited them regularly. During the visits he would be rude and offensive to her mother and would be horrid and denigrating to L calling him "fat" and telling him that he was no good for anything. C stated that her father would never take L out but seemed to use contact as a way of controlling her mother and her.

(7) C stated that her mother had subsequently moved house again, but, to her disappointment, had then told her father where they were now living. C stated that her father constantly demanded that they move back to live with him. She said to Miss Hansen that "they sort of reconciled" and that it was "like she [i.e. her mother] had given up".

(8) C said that things had come to a head last year when she was sitting her exams in June. One evening her father came round and her parents started arguing again. C could not concentrate and asked him to be quiet, whereupon her father became furious and started hitting her all over her arms and legs. The next morning she went to her exam covered in bruises and with her arms aching. She broke down during the exam and could not complete the paper. The school's counsellor had taken her aside and found her a hostel where she could stay because she was too scared to go home.

(9) C told Miss Hansen that she was worried for L and knew that she had to move back into the house because of her concern and did so in about January or February of this year. She said: "the last five months before we left were awful. My Mum had tried to protect L a bit but it did not really work. I would therefore argue with Dad to try to ensure that L was protected from his Dad's usual bullying. I also felt I had to protect my mother".

(10) C further said to Miss Hansen: "I am terrified that if L goes back, Mum would go back as well, and there will be no protection for either of them. I will have to go back too… I do not how [L] would handle my father now. I do know that my father started hitting me quite regularly from the age of eleven onwards and this is L's age now. I believe L would suffer the same fate". She stated that unfortunately her mother is so scared of her father that she could not say no to him. She could not shut the door on him and could not report him to the police. In essence, C said that the mother could not protect her children from the father. Their only protection was that of distance.

The parties' positions

8. On behalf of C, Mr Devereux deployed a number of detailed legal arguments, but essentially put forward two bases for joining his client as a respondent. First, he submitted that C is a "mandatory" defendant to this application under the 1985 Act by virtue of rule 6.5(e) of the Family Proceedings Rules ("FPR"). Further or alternatively he submitted that these proceedings fall within the statutory definition of "family proceedings" and, pursuant to FPR rule 9.5, the Court has a discretionary power to join C, as a child, if it considers that it is in her best interest to be so joined.
9. On behalf of the father, Mr Williams opposes C's application and invites me to reject Mr Devereux's legal arguments. He submitted that C does not fall within the category of persons under rule 6.5(e) who "shall" be joined as Defendants. In the alternative, he submits that, if she does fall within that category, the court retains a residual discretion to refuse her application to be joined. Thirdly, he submits that, whilst rule 9.5 theoretically applies to a child who seeks to be joined as a defendant in Hague Convention proceedings, in the circumstances of this case it is not in C's best interests to be so joined.
10. On behalf of the mother, Miss Renton formally adopted a neutral position, whilst making it clear in oral submissions that her client does support C's application.

The Family Proceedings Rules: Decision in S v B

11. Rule 6.5 of the FPR provides that defendants to an application brought under the Child Abduction and Custody Act 1985 shall be

"(a) the person alleged to have been brought into the UK the child in respect of whom an application under the Hague Convention is made;

(b) the person with whom the child is alleged to be;

(c) any parent or guardian of the child who is within the UK and is not otherwise a party;

(d) the person in whose favour a decision relating to custody has been made if he is not otherwise a party; and

(e) any other person who appears to the court to have a sufficient interest in the welfare of the child" (emphasis added).

12. Rule 9.5 of the FPR 1991 provides that:

"(1) Without prejudice to rules 2.57 and 9.2(A) and to para. 2 of appendix 4, if in any family proceedings it appears to the Court that it is in the best interests of any child to be made a party to the proceedings, the Court may appoint

(a) an officer of the service or a Welsh family proceedings officer;

(b) if he consents, the Official Solicitor; or

(c) if he consents, some other proper person

to be the guardian ad litem of the child with the authority to take part in the proceedings on the child's behalf.

(2) An order under paragraph (1) may be made by the court of its own motion or on the application of a party to the proceedings or of the proposed guardian ad litem…"

13. In S v B (Abduction: Human Rights) [2005] EWHC 773 (Fam) [2005] 2 FLR 878, Sir Mark Potter P considered the application of rules 6.5 and 9.5 in the context of an application by a sibling to be joined to Hague Convention proceedings. In that case a father sought the return to New Zealand of a twenty month old child. The mother opposed the return and was supported by the child's half sibling, Y, aged 13, who expressed very clearly his unwillingness to return to New Zealand. At a directions hearing, Singer J held that he did not consider that a child in the position of Y was a mandatory defendant under rule 6.5(e) but nevertheless joined Y as a party on the basis that his position was analogous to that of a position of a child who is himself the subject of a Convention application.
14. Subsequently, the father's application for summary return under the Convention was heard by the President who ordered the return of the child. In giving judgment, the President made certain observations about the joinder of Y to the proceedings. First, he expressed agreement with Singer J's decision that Y did not fall into the category of mandatory defendant under rule 6.5(e). The President commented: "it seems to me that the words in (e) fall to be construed eiusdem generis with the preceding classes of the defendant in (a) to (d), namely persons who by reason of their particular situation, are directly concerned with the welfare of the child in the sense that they have provided, and/or have a continuing or potential interest in the provision of, care for the child, or have some legal or practical responsibility for the child's welfare."
15. The President went on to consider the basis upon which Singer J had joined Y as a party. He commented (at para. 61): "in such a case it is plain that there is jurisdiction in the court, where appropriate, to permit children to be joined as parties." Although neither Singer J nor the President spelt out the basis for this jurisdiction, all counsel before me agreed that the basis must have been rule 9.5. Considering Singer J's decision that Y's position was analogous to that of a position of a child who is the subject of a convention application, the President reminded himself of the dicta of Wall J (as he then was) in Re S (Abduction: Children: Separate Representation) [1997] 1 FLR 486 that, for a subject–child to require separate representation in Hague Convention proceedings, "there must be exceptional circumstances which on the facts make it inappropriate for the child's wishes and feelings to be represented either by one of the existing parties to the proceedings or by the court welfare officer. There must also … be an arguable case that the discretion under Article 13 will be exercised." Having noted the arguments presented to Singer J, and in particular the submission that, under the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), there was now a positive obligation to make sure that the right to a family life and the right to a fair trial were given proper weight, the President concluded that Singer J's decision was a proper solution on the basis of the submissions presented to him. He added, however, that "as it has emerged, the order was unnecessary because there has been no substantial divergence apparent between Y and the Mother." The President continued (at para. 68): "this perhaps emphasises the importance, upon an application for separate representation, of investigating whether or not: (a) there are exceptional circumstances in justifying such a course; and (b) there is, on the information available, an arguable case for the exercise of the Court's Article 13 discretion. As a general observation, it seems me that, at least in relation to non-European cases, the need to order separate representation in relation to a child who is not the subject of an application will be rare indeed. The summary nature of the procedure, the hegemony to be accorded to the interests of the child who is the subject of the application, and the availability of the services of a CAFCASS officer in the appropriate case, all make it difficult to envisage a situation where the position of a sibling who is not the subject of an application would merit such a course."

The parties' submissions

16. Both Mr. Devereux on behalf of C and Mr. Williams on behalf of the father made detailed and well-argued submissions. What follows is but an outline of their arguments and cannot hope to do justice to their commendable erudition.
17. Mr. Devereux first sought to challenge the President's restricted interpretation of rule 6.5(e) in S v B by drawing my attention to the use of the phrase "sufficient interest" in another area of the law, namely s. 31(3) of what is now called the Senior Courts Act 1981, providing that "no application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates" Mr. Devereux relied on the commentary in 'Judicial Review Handbook' (Michael Fordham, 5th edition, OUP, 2008) at para 38, and the cases cited therein, including Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, in which Lord Diplock at page 642 described the phrase "sufficient interest" as "ordinary English words which, on the face of them, leave the court an unfettered discretion to decide what in its own good judgment it considers to be 'a sufficient interest' on the part of a plaintiff in the particular circumstances of the case before it. For my part I would not strain to give them any narrower meaning."
18. Secondly, Mr. Devereux submitted that, when considering an application by a child to be joined as a party to family proceedings, which, pursuant to rule 9.5 involves an analysis of what is in that child's best interests, the court must have regard to the modern approach, based on Article 12 of the UN Convention on the Rights of the Child, to the separate representation of children as outlined by the Court of Appeal in Mabon v Mabon [2005] EWCA Civ 634, [2005] 2 FLR 1011. That was a case involving an application by three children to be separately represented in private law proceedings under the Children Act 1989. In his judgment at para 28, Thorpe LJ observed: "unless we in this jurisdiction are to fall out of step with similar societies as they safeguard Art 12 rights, we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare." Mr. Devereux also referred me to the transcript of a speech delivered by the President – the Lionel Cohen lecture, delivered in Israel on 4th May 2008 – in which he described the decision in Mabon as marking "a substantial step forward in judicial attitudes". Mr. Devereux submitted that, as a result of this step forward, the courts should now recognise, more readily than they did at the time of the President's own decision in S v B only a year before Mabon, that a child whose sibling is the subject of a Hague Convention application has a heightened claim to be joined as a defendant.
19. Thirdly, and linked to this second point, Mr. Devereux referred to the recent line of authorities demonstrating what he described as a radical alteration to the way in which the court approaches the issue of whether a child, who is the subject of Hague Convention proceedings, should be joined as a party, namely Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 FLR 251, and Re C (Abduction: Separate Representation of Children) [2008] EWHC 517 (Fam), [2008] 2 FLR 6. From these authorities, he suggested the following points were of particular relevance to the issue before the court.

(1) "… [T]here is now a growing understanding of the importance of listening to the children involved in children's cases" (per Baroness Hale of Richmond in Re D at para 57).

(2) Baroness Hale concluded in Re D (at para 58) that the obligation of Article 11 (2) of Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, repealing Regulation (EC) No 1347/2000, ("Brussels II Revised"), which required European Hague Convention cases (subject to the Regulation) to hear the child, unless it appeared inappropriate having regard to his or her age or degree of maturity, should be of universal application to all Convention cases.

(3) Save in "settlement" cases under the second paragraph of article 12 of the Hague Convention (where joinder of children should be "routine"), separate representation of children will generally not add enough to the court's understanding to justify the likely intrusion, expense and delay (per Baroness Hale in Re M at para 57). Baroness Hale added, however, that she would hesitate to use the word 'exceptional', as proposed by the Court of Appeal in Re F (Abduction: Joinder of Child as Party) [2007] EWCA Civ 393, [2007] 2 FLR 313. She added: "the substance is what counts, not the label."

(4) "If the 'gateway' of the children's objections exception is passed, the court must consider the discretion stage. It is argued that Re M marks a change so that the return 'policy' of the Convention is a much less potent factor to be considered at this stage …. Welfare considerations, including having regard to the children's views, will now loom larger" (per Ryder J. in Re C at para 45).

20. Mr. Devereux submitted that these developments in the court's approach to the question whether a subject-child should be joined to proceedings under the Hague Convention also justified a broader approach to the question whether to join a non-subject child sibling, whether under rule 6.5(e) or rule 9.5.
21. Finally, Mr. Devereux submitted that, on the facts of this case, C should be joined as a party, for the following reasons.

(1) She is a full sibling to L and very close to him.

(2) She is significantly older and more mature than the non-subject child Y in S v B, and in the opinion of Miss Hansen she is bright and articulate.

(3) She plays a very different role in the household from that played by Y in S v B. She is, it is submitted, a "critical protective element" for L against the father's allegedly violent behaviour. Her role and presence in the mother's household directly impacts upon L's welfare.

(4) The allegations of domestic violence are, it is said, of a more serious degree than in S v B.

(5) C will be devastated if this Court orders L to be returned to Australia and will face a difficult decision whether to stay here or accompany him.

(6) C has a position close to, but independent of, that of the mother, about whom she makes some criticisms in her capacity to protect L.

(7) A person's right to respect for private and family life under Article 8 of ECHR incorporates inter alia a right to procedural fairness, as recognised in numerous cases from W v UK (1987) 10 EHRR 29 to CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 2 FLR 517. Procedural fairness requires that C be allowed to participate in this process that will lead to crucial decisions about her future and that of her family.

22. In reply, Mr. Williams submitted that there had been no developments since the decision in S v B to justify a departure from the clear legal guidance provided by the President, either concerning the interpretation of rule 6.5(e) or the application of rule 9.5 to applications under the Hague Convention. Extending category (e) in rule 6.5 beyond the limits defined by the President in S v B is unnecessary and runs counter to the purpose and nature of Hague proceedings. The voice of individuals such as C can be heard by filing evidence in support of the defendant's case. Mr. Williams submitted that there was no distinction, for the purposes of category (e), between a child and adult, since the focus of the test for joinder is the sufficiency of the applicant's interest in the welfare of the subject child.
23. Mr. Williams further contended that the authorities dealing with the joinder of children who are the subject of a Hague Convention application are not directly applicable because C is not the subject of the application. A child who is the subject of an application for summary return under the Hague Convention is in a wholly different category from other children such as C. He argued that a restrictive application of any power to join a non-subject child was supported by the absence of an express provision in the rules for joinder of adults other than those who are mandatory defendants, the restrictive interpretation of joinder of even subject children, and the summary nature of Hague Convention proceedings with the need for speed of process.
24. Mr. Williams proceeded to submit that, even where persuaded pursuant to rule 6.5(e) that an applicant has sufficient interest in the welfare of the subject child, or pursuant to rule 9.5 that it was in the best interests of a child to be joined, the court retained a residual discretion to refuse the application, and should in the exercise of that discretion refuse the application if satisfied that joinder would have an adverse impact on the proceedings, for example by leading to further delay which is, of course, inimical to the Hague process.
25. On the facts of this case, Mr. Williams counselled the Court to take a cautious approach, bearing in mind that the father's evidence is not yet available. He submitted that there is no difference of substance between, on the one hand, C's version of the family history, including the allegations of domestic violence and domineering abuse, and, on the other hand, the version provided by her mother. He stresses that, if L is returned to Australia, C will have a role to play in the ultimate decision about his welfare. At this stage, however, he submitted that there is no divergence of interest between C and her mother.
26. In her brief submissions on behalf of the mother, Miss Renton stressed the different perspectives of her client and C. She pointed out that the mother describes her article 13(b) defence in very different terms from that employed by her daughter. Only C, says Miss Renton, can deploy the argument that there is a risk that her mother would be unable to protect L if he is returned to Australia.

Decision

27. It was remarked in the course of argument that the President's dicta in S v B, concerning the interpretation of rule 6.5(e) and the approach to the joinder of non-subject children in Hague Convention cases were obiter. Whilst that may be technically correct, this does not in my view significantly detract from the respect which this court must afford them. It was also suggested that his comments were made without hearing legal argument, although, given the identity and enormous experience of counsel who appeared in that case, I think it very unlikely that they would not have had their say. Whilst noting that word "sufficient" is omitted in the quotation of the terms of rule 6.5(e) in the judgment in S v B, I am confident that the President had the full terms of the rule in mind. His decision, therefore, is a strongly persuasive authority and it would be a bold step for another judge at first instance to take a different course.
28. In order to be entitled as of right to be joined as a mandatory defendant under rule 6.5(e), an applicant must therefore establish that he or she is directly concerned with the welfare of the subject child in the sense that they have (1) provided care for the child and/or (2) have a continuing or potential interest in the provision of care for the child, or (3) have some legal or practical responsibility for the child's welfare. Mr. Devereux submits, in effect, that this interpretation of paragraph (e) gives an unwarranted narrower meaning to the words of the rule. To my mind, however, the President's definition is capable of encompassing everyone, or nearly everyone, who is likely to be able to demonstrate an interest in the welfare of the child sufficient to be heard on the question whether to order a return of the child to the country from which he has allegedly been wrongfully removed. The rule defining the categories of persons to be joined as defendants to Hague applications is expressed in mandatory terms. It does not give the court a discretionary power to join any other person whom the court thinks fit, and I reject Mr. Williams' submission that the court has a discretion not to join as a defendant a person who can demonstrate that they come within the terms of paragraph (e). Clearly, in a summary process, where the court is obliged to strive to conclude the proceedings within a very short time period, the procedural rules need to be tightly drawn. The plaintiff and the Court need to be able to reach a quick decision as to whom should be joined as a defendant. From a practical perspective, the proliferation of parties is undesirable, and in most cases all the available arguments on the core issue whether or not to order the child's return will be deployed by the plaintiff and the alleged abductor. Thus the policy underpinning the President's interpretation of rule 6.5(e) is sound and pragmatic.
29. The same can also be said of the President's observations in paragraph 68 of his judgment in S v B about the separate representation of a child who is not the subject of the return application. Here, however, there may be some justification in an appropriate case for reconsidering those observations, for the reasons identified by Mr. Devereux in the light of developments in the law since S v B, in particular the substantial step forward in judicial attitudes marked by the decision of the Court of Appeal in Mabon and the decisions of the House of Lords in Re D and Re M . Mr. Devereux postulated the example of a family with twin children, only one of whom is the subject of the Hague application. It is not, however, the role of this court to decide hypothetical issues. The supply of cases in this jurisdiction seems to be inexhaustible and doubtless counsel will soon have an opportunity to develop that argument where the facts support it.
30. In this case, I conclude that C manifestly falls within rule 6.5(e) because she is directly concerned in L's welfare in the sense that she has a continuing and potential interest in the provision of his care, and has some practical, albeit not legal, responsibility for his welfare. In her articulate way, C has demonstrated through Miss Hansen that, because of the alleged volatility and dysfunctionality of her parents' relationship, she has taken on the role of protecting L. Pointing to instances in the past where L has not been protected from what she describes as her father's abusive behaviour, she questions her mother's capacity to protect him in future. For that reason, she wishes to be heard on the application for his summary return, and in particular Article 13(b). She is an older sibling, approaching adulthood, who feels an acute sense of responsibility for her brother's welfare. She clearly has a different perspective – and a different case to put – from her mother. I am confident that most people would feel it right and indeed essential that she should be separately represented. I am entirely satisfied that she falls squarely within rule 6.5(e).
31. Having so decided, I do not need to make any decision as to whether she should be joined under rule 9.5. I would, in any event, have felt uneasy about any analysis that affords greater rights to a person who is 17 years 11 months old than to a young adult who has just turned 18.
32. At the conclusion of the hearing, I directed that the application for an order for summary return should remain in the list for 11th December. On the information, before me, there seems to be a good prospect of the matter being ready for hearing, notwithstanding the late joinder of C, and the even later filing of evidence. Although it is open to any party, including C, to apply to the trial judge for an adjournment, I agree with Mr. Williams that the court must strive to conclude the case without any further delay.