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Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26

Sep 29, 2018, 22:28 PM
The mother’s appeal from a return order was allowed and the Court of Appeal found that the children did object to a return and that a return order should not be granted.
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Date : Jan 30, 2015, 11:01 AM
Article ID : 116578
(Court of Appeal, Richards, Black, Ryder LJJ, 27 January 2015)

[The judically approved judgment and accompanying headnote has now published in Family Law Reports [2015] 2 FLR 1074]

 Abduction – Child’s objections – Joinder of parties to appeal – Whether the objections were made out – Whether the children could be joined to the appeal proceedings
Please see attached file below for the full judgment.

  The mother’s appeal from a return order was allowed and the Court of Appeal found that the children did object to a return and that a return order should not be granted.

 The parents lived with their four children in Southern Ireland prior to their separation. The mother was the primary carer and the father provided financially for the family. In 2014 when the parents separated the mother took the children to England without warning the father.

 The mother accepted she had wrongfully removed the children for the purposes of Art 3 of the Hague Convention and she made allegations of domestic abuse against the father. The father sought the return of the children to Ireland and the mother resisted the application on the basis of the children’s objections and a grave risk of harm.

 The judge found that the mother had not made out her defence of a grave risk of harm and had failed to provide clear and compelling evidence. The judge found that the children were not objecting in a Hague Convention sense and that they had failed to appreciate the protective measures that could be put in place. A return order was granted.

 The mother appealed. The determination on the children’s objections would be set aside. A finding would be substituted that the older three children all objected to a return. The judge had erred in finding the children’s objections had not been made out when the Cafcass officer had clearly found that they had. Whether or not the children could separate their feelings about their father from their feelings regarding a return to Ireland might be relevant at the discretion stage of the application but it was not relevant at the gateway stage that the judge was considering.

 Weighing all of the relevant evidence there were strong reasons to exercise the discretion not to order a return of the children to Ireland, particularly in relation to the oldest child.

 It was imperative that in Hague Convention cases consideration was given at the earliest possible stage as to whether the appropriate parties were before the court. In this instance no consideration was given to whether the children should be joined as parties until after judgment was given. There was no reason why regard should not be had to Practice Direction 16A of the FPR in considering the issue of joinder in Hague Convention proceedings.

 An application for children to be joined as parties to proceedings at the appeal stage would not always be received sympathetically. Consideration should be given at the outset of proceedings. By the time the matter reached the Court of Appeal it was usually far too late to be considering such an application.

  Case No: B4/2014/2445, 2447 & 2499
 Neutral Citation Number: [2015] EWCA Civ 26


 Royal Courts of Justice

 Date: 27/01/2015

Before :


 - - - - - - - - - - - - - - - - - - - - -


 - - - - - - - - - - - - - - - - - - - - -

 Mr Christopher Hames & Ms Dorothea Gartland (instructed by Freemans) for the 1st & 2nd Appellants
 Ms Ruth Kirby (instructed By Co-operative Legal Services) for the 3rd Appellant Mr James Turner QC & Ms Mehvish Chaudhry (instructed by Williscroft & Co) for the Respondent

 Hearing dates: 4th & 5th November 2014

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 Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 
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