FAMILY/CHILDREN LAW: CROSS-BORDER DISPUTES: An Introduction to London (Firms)

Overview of Cross-Border Children’s Cases 

More than any other area of family law, cross-border children cases tend to be the most reported; possibly because of their binary nature, definitely because of the complexities of jurisdiction, international treaties and their interrelationships. Recently there have been interesting developments in external relocation cases, in post-Brexit Hague cases, and most particularly in the representation of children.

TR v JM 2022 EWFC 60 

We thought we knew where we were with external relocation cases: “Payne” was “out” and, in Re F (a child) (permission to relocate), [2012] EWCA Civ 1364 and K v K (children) (removal from jurisdiction) [2011] EWCA Civ 793, the welfare of the child had become paramount, and whilst a full “checklist” is not required, the sustainability of the relationship with the potentially left behind parent has for a while been high on the list of the courts’ priorities. But is that changing? In TR v JM, the court allowed a mother’s application to relocate to the USA with the two children aged five and seven, not an easy trip for weekend visits. Both parents shared care of the children and both were suffering from depression. The Cafcass officer said that one parent would be bound to be disappointed whatever the decision, and the judge said there was little to choose between the two parent’s plans. Taking all this into account, the judge still determined in favour of relocation stating that the mother’s state of health would deteriorate if her application to relocate were denied, which would have a detrimental impact upon the children. By comparison, the impact upon the father could be managed by robust contact arrangements and both parents’ commitment to trans-Atlantic contact.

G v H (Hague Convention: Wrongful Removal) ( 2023) EWHC 2351

In G v H, the mother admitted wrongful removal of the child from Portugal but then, in an attempt to remedy the situation, applied in Portugal for interim custody and permission to remain in England, after the Hague application had already been issued. The result would have been straightforward pre-Brexit with Regulation (EC) No 2201/2003 (BIIR) taking precedence, and codifying the answer. Mr Justice Poole could have simply dismissed the Hague application for a return order, allowing the Portuguese court to exercise primary jurisdiction and he stated that might well have been a suitable outcome in another case, but he was satisfied that the appropriate decision in this case was to “stay” the proceedings with liberty to apply and to restore on notice, enabling the Portuguese court to deal with the mother’s application but preserving the father’s right to seek a remedy under the Hague Convention in the event that the Portuguese court refused mother’s application.

Re D (A Child) (Abduction: Child’s Objections: Representation of Child Party) (Rev1) (2023) EWCA Civ 1047

In Re D, the Court of Appeal considered the role of the solicitor guardian, unique to Hague Convention proceedings.

The second limb of Article 13B in Hague Child Abduction proceedings is engaged when a child’s objections defence is raised. There is no age limit for a child’s objections defence to be made; however, the child must have attained an age and degree of maturity to be able to form an objection to a return rather than merely a preference.

If the defence is relevant then the usual procedure is for directions to be made at the earliest stage for a Cafcass report to be produced, this is due to the summary nature of the procedure. The Cafcass officer is requested to address the question of whether the child should be separately represented. This could be via a Cafcass guardian or, if the case is complex, a recommendation that a child be separately represented. The alternative route is that the child make their own way to a specialist solicitor to make their own application.

This was the history in the case of Re D (A Child) (Abduction: Child’s Objections: Representation of Child Party) (Rev1) (2023) EWCA Civ 1047. This was a joint appeal, and the second appeal is eagerly awaited. In the circumstances of Re D, the child approached a solicitor prior to the issue of any proceedings. At the first hearing, the child was joined to proceedings before the chid had seen the Cafcass officer and his solicitor was appointed as the child’s solicitor/ guardian. At the final hearing, the Cafcass officer and solicitor guardian gave conflicting oral evidence. In ordering the return of the child to Singapore, the judge found that the opinion evidence provided by the solicitor guardian was inadmissible and where it conflicted with the Cafcass officer, preferred the Cafcass officer. He was highly critical of the approach of the solicitor guardian in light of the specific facts of this case and evidence of the father’s communication with his son which was said to be highly manipulative. The child appealed against the Order for return. The Court of Appeal found that the judge at first instance was wrong to say that the opinion evidence of the solicitor guardian was not admissible, and therefore appeal was allowed with the matter remitted to the High Court.

What makes this case interesting for children law practitioners is the thorough analysis of how the role of the solicitor guardian in Hague Convention proceedings differs when compared to other private law and public law proceedings. The starting point is Rule 16 of the Family Procedure Rules 2020, which deals with the representation of children. Hague Convention proceedings are family proceedings for the purposes of this rule; however, Rules 16.2 and 16.4 do not apply to Hague Convention matters because they do not fall into the category of either specified proceedings or Part 14 proceedings (care and adoption proceedings). Therefore, where the court joins a subject child as a party to Hague proceedings, the court must appoint a children’s guardian – a litigation friend will not suffice.

Mr Justice Baker (as he then was), in WF v FJ (Abduction: Child Objections) (2011) 1 FLR 1153, took the pragmatic approach of addressing what he termed a lacuna in the rules regarding Hague proceedings and separate representation, by appointing the solicitor acting for the child as her guardian. This is now a common practice. In Re D and the accompanying appeal (decision yet to be published) the Court of Appeal heard the divergence of views regarding how this role should be undertaken. The Court of Appeal was asked to consider where there was conflict between the Court-appointed Cafcass officer and the solicitor guardian, as well as the dual role of the solicitor advancing a legal position on behalf of their client (advocating) and also addressing (often giving evidence) their client’s wishes and feelings from the guardian’s perspective. The Court considered if the stringent requirements expected of solicitors representing children in public law proceedings, including membership of the Law Society’s Children panel and training in representation of children should also be a requirement in private law matters. Importantly, this will be referred to the Family Procedure Rules Committee as it is becoming clear that Rule 16 is inadequate to the task.