Child’s Art 23(b) ‘opportunity to be heard’
The law remains as it was explained by the Court of Appeal, although it must be recalled that the views of Lady Hale (first as write,r then as Law Commissioner Brenda Hoggett, and now as a judge) has been a central part of the debate on that ‘very large question’ (para  of her judgment in Re D
cited above), including very recently while delivering the keynote speech
at the Lawyers for Children Annual Conference in Manchester on 20 November 2015.
Ryder LJ (with whom Briggs and Moore-Bick agreed) gave the main judgment. He started his review of the position under At 23(b): that there could be no recognition, and therefore no enforcement, if there has been violation of a ‘fundamental principle’:
' It is to be noted from the terms of Art 23(b) that if the judge is satisfied that there has been a violation of a fundamental principle of procedure, then there is no discretion in the consequence: the order shall not be recognised and accordingly cannot be enforced under the Regulation. In my judgment nothing turns on any distinction that there may be between a violation and a breach. If the question is fundamental and it was not asked by the court, then that would be a sufficient failure to comply.'
So what is an opportunity to be heard? An alternative term is ‘participation’. In the Family Procedure Rules 2010 amendments proposed by the Vulnerable Witnesses and Children Working Group – the ‘Amendment X Regulations 2015
’, which are likely to come into operation in Autumn 2016 in some form – puts the matter thus:
'3A.2 The court’s duty to consider whether a child should participate in proceedings
(1) The court must consider whether a child should participate in the proceedings by reason of meeting one of the conditions set out in paragraphs 2(a), (b) or (c) and if so, make a direction that the child should participate.
(2) The conditions are that the child is— (a) a party to the proceedings; (b) the subject of the proceedings but not a party to them; or (c) otherwise affected by matters in the proceedings.'
‘Fundamental principles’: crying out to be heard
A fundamental principle had been breached, and that fundamental principle was one which increasingly must run through all English child law. It starts, Ryder LJ stressed, with the Children Act 1989, particularly with the centrally important CA 1989, s 1(3)(a). This must be applied to the particular child in ‘in context’; that is, according to the child’s age at the time the consideration takes place (in this case, before Peter Jackson J, when David was eight).
Under s 1(3)(a) when making a decision about a child future, the court must consider (‘shall have regard to’) a number of factors, including the well-known:
'(a) ascertainable wishes and feelings of the child concerned (considered in the light of [the child’s] age and understanding.'
This, Ryder LJ said at para , was a mandatory provision: ‘the parents cannot seek to avoid it’. He refused to accept that s 1(3)(a) was not a statement of fundamental principle. In support of that rejection he cited Lady Hale in Re D (A Child), sub nom Re D (Abduction: Rights of Custody)  UKHL 5,  1 FLR 961
at paras  to , in particular:
' But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents' views.'
Practice of English courts recognises this ‘fundamental principle of procedure’; said Ryder LJ:
' Far from section 1(3)(a) CA 1989 being merely a checklist factor that is designed to ensure comprehensive evaluation of a welfare question, it is plainly an example of domestic legislation giving force to a fundamental principle of procedure. The same principle is to be found in article 11.2 BIIR (using the European language for the same concept: "it shall be ensured that the child is given the opportunity to be heard during the proceedings").'
And once the child was of an age to have a view, Art 23(b) demands that he or she has an opportunity to be heard. It is clear beyond doubt that this is the law in relation to any children proceedings in England and Wales after Re D (A Child) (International Recognition)
 EWCA Civ 12,  1 WLR 2469. Briggs LJ delivered a short judgment concurring with Ryder LJ, which included:
' … Although some might regard the age of seven as lying near the borderline above which the giving of such an opportunity might be regarded as routine, the very large implications for [David] of the decision sought by his father, namely a complete change in his main carer and a move to a country in which he had not lived since very soon after his birth, cried out for consideration of the question whether he should be heard, all the more so since the mother, who might have been supposed to be likely to put the case for preserving the status quo, appeared to be taking no part in the appeal.'
Participation of the child in proceedings
Participation of the child in our domestic proceedings was the subject of a growing jurisprudence, recalled Ryder LJ. It was specifically highlighted in Re D (A Child)
(above), by Lady Hale, and by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4,  1 FLR 2170
. These dicta were brought together by Sir James Munby P in Cambra v Jones (Contempt Proceedings: Child Joined as Party)  EWHC 913 (Fam),  1 FLR 263
, whom Ryder LJ cited as follows:
' … If and to the extent that [the child’s] Art 8 rights are engaged, then that will carry with it the important procedural right to be ‘involved in the decision-making process, seen as a whole, to a degree sufficient to provide [her] with the requisite protection of [her] interests’ see W v United Kingdom (1988) 10 EHRR 29, para . However, although that may, it does not necessarily, carry with it the right to be represented or the right to party status: see ZH (Tanzania), paras 34-37 …'
It remains a fundamental principle of English law in children proceedings in any jurisdiction where CA 1989 s 1(3)(a) is – or may be – engaged, that the child’s participation be considered. This principle is confirmed and explained by Ryder LJ in Re D (A Child) (International Recognition)
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