Return Order: Joinder of Child

A, who is now 12 years old, was born in England in 2008.

M, a British national, met F, an Italian national in Italy in 2005.  From 2008 they lived together in Italy as a family.

Although F was not originally recognised on the child’s birth certificate in this country, the couple later, in Italy, signed a declaration recognising A’s paternity.

A grew up in Italy.  During 2019 M brought A to England but made the decision not to return.

F applied for a summary return order to Italy under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The Court of Appeal today allowed an appeal by F against the decision of a Deputy High Court Judge, and ordered A’s return to Italy: Re: A (A Child) (1980 Hague Convention: Set Aside):  [2021] EWCA Civ 194 Moylan LJ, Lady Justice Asplin, Hayden J.

This short summary concerns an application made on behalf of A, the subject of the proceedings, to be joined as a party.

The legal framework was uncontroversial.

Lady  Justice Black had provided guidance in respect of joinder of a child to an appeal where the child had not been a party in the court below: Re M (Children) (Republic of Ireland) (Child’s Objections) (Joinder of children as parties to appeal) [2015] EWCA Civ 26, [2016] Fam 1.

She observed that Rule 16.2 FPR provided that the court may only make a child a party if it considered that it was in the child’s best interests to do so.

Rule 52.1 defined “appellant” and “respondent” for the purposes of part 52 but included no guidance at all as to when a person should be permitted by the appeal court to be a party to the appeal, let alone any guidance tailored to the situation of a child who wished to participate.

Although welfare decisions were not irrelevant, they were not necessarily determinative and there was no best interests threshold such as there was in the FPR.

In Re P (Abduction: Child’s Objections) [2020] EWCA Civ 260 Moylan LJ concluded: “It is clear from the … authorities that it will only rarely be in a child’s best interests to be joined as a party to proceedings under the 1980 Convention.  When the relevant issue is a child’s objections, this is because the child’s views and interests will, typically, ‘be properly presented to the court’ through evidence from a CAFCASS officer and through the legal arguments being advanced on behalf of the parents and addressed by the court.”

The reports of R, the Family Court Adviser, set out a careful analysis and contained a skilful evaluation of both A’s wishes and feelings.

It was R’s reports that had brought A’s voice into the court room.

The most prominent and consistent response in both interviews had been A’s forceful and determined resistance to being required to express his own view as to where he should live.

What was abundantly clear was that this mature young man loved both his parents equally.  A was sending an entirely clear message that he did not want to be drawn into the conflict between his parents.

Were A to be joined as a party, his lawyers would no doubt advance his wishes and instructions to the court.

They were, however, less well placed to understand and articulate A’s feelings.  The CAFCASS officer held the appropriate skills.

Moreover, it was clear that A had been placed under considerable emotional pressure to express the preference A desired.

Joining A as a party would not merely fail to serve his best interests but would actively be contrary to his welfare.  It would only serve to heighten the conflict he had struggled to avoid.

It was clear that the application should be refused:  not because A’s views were unimportant, but because his views and interests had been very fully provided to the court through the evidence of R and through the submissions made by each of the parents.