Dec 1
The father applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980, for the summary return of the children, X aged 12 and Y aged 6, to the jurisdiction of Mauritius alleging their wrongful retention in England by the mother. The judge initially decided that article 13(b) of the Hague Convention had not been established and that, while X objected to returning to Mauritius, the judge would exercise her discretion by making a return order. X was then joined as a party to the proceedings, a solicitor was appointed as her guardian, and she applied to set aside the return order. The parties filed written statements and gave evidence, as did the solicitor. At the final hearing the judge heard evidence from the CAFCASS officer, X’s head teacher and X’s solicitor on the extent to which X objected to returning to Mauritius. Largely as a result of the solicitor’s evidence, the return order was set aside and the judge ordered that the children should remain in England. The father appealed and questions arose as to the role of a solicitor acting as a guardian in such cases.
On the appeal—
Held, appeal dismissed. A solicitor who was also acting as a child’s guardian should confine their evidence to setting out the child’s perspective or views as relayed through their instructions. If they sought to go further, the express permission of the court should be sought in advance so that the issue could be properly considered in the context of the individual case. Solicitors should not seek to give opinion evidence beyond that necessary to explain why they considered a child competent to instruct them under the FPR r 16.6(3)(b)(i)). The Family Justice Counsel’s guidance on “Assessing Child’s Competence to Instruct a Solicitor” referred to the need for a solicitor to be alert to the potential influence of the parent or person who had brought the child to see them, both before proceedings had been initiated, and once they had started. But that was for the specific purposes of deciding whether a child was competent or had sufficient understanding to conduct proceedings. It was not for any wider purpose. Pending any review of the proper scope of the evidence given by a solicitor acting as a guardian, CAFCASS officers were responsible for assessing the quality and strength of a child’s views and objections, whether they were authentic and consideration of the matters relevant to the court's determination of the weight to be given to any objection under article 13 of the Hague Convention. Notwithstanding this, in the present case the solicitor's evidence had ben both admissible and relevant. It had been a matter for the judge to decide what weight to attribute to different aspects of the evidence and there was nothing to suggest that her analysis was flawed in any material respect or was wrong (paras 90–91, 97, 100, 105, 106, 107).
Per curiam. Consideration should be given to setting up a committee to make recommendations as to (i) the appropriate nature of the role of a solicitor when acting as a guardian, in particular, in respect of the scope of the evidence they adduce; and (ii) the process which should be adopted in respect of a child being joined as a party to private law proceedings (para 89, 106, 107).
Ruth Kirby KC, Adele Cameron-Douglas and Miriam Best (instructed by Brethertons LLP) for the father.
Mark Jarman KC and Mani Basi (instructed by Dawson Cornwell) for the mother.
Christopher Hames KC, Indu Kumar and Charlotte Baker (instructed by Goodman Ray Solicitors) for the child.
Deirdre Fottrell KC, Lorraine Cavanagh KC, Siobhan F Kelly and Sharon Segal (instructed by ITN Solicitors) for the Association of Lawyers for Children, intervening.
Henry Setright KC and Harry Langford (instructed by Mills and Reeve LLP) for the Reunite International Child Abduction Centre, intervening.