The return order in relation to the 13-year-old child was set aside as the meeting between the child and judge went beyond the scope envisaged in the Guidelines for Judges Meeting Children who are Subject to Family Proceedings (April 2010).
Meta Title :re-kp-a-child-2014-ewca-civ-554
Meta Keywords :Abduction, Hague Convention, Judge meeting child
The 13-year-old Maltese child had lived in Malta her entire life until the mother brought her to the UK without the father's knowledge or consent. The father issued Hague Convention proceedings seeking the child's return.
When the matter reached a final hearing the mother accepted that the father had rights of custody and that her removal of the child had been wrongful under the Hague Convention. During proceedings the judge met with the child and sought to probe her wishes and feelings by asking 87 questions. He thereafter rejected the Cafcass evidence and ordered the child's return to Malta. The mother appealed.
The appeal was allowed and the return order was set aside. It was a well established principle that a child should be heard in Hague Convention proceedings which involved listening to the child's point of view and hearing what they had to say. Usually those views would be obtained by a Cafcass officer but in some cases it might be necessary for the judge to meet the child directly. Such a meeting was an opportunity for the child to convey his or her views to the judge and for the judge to explain the proceedings to the child and why a decision might be made in contrast to the child's views.
Applying the Guidelines for Judges Meeting Children who are Subject to Family Proceedings (April 2010), the meeting in this case went well beyond the passive role envisaged in the guidelines and strayed into the process of gathering evidence. The judge had erred in regarding the meeting as being an opportunity for the child to make representations and submissions to her.
The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.