In C v M [2023] EWCA Civ 1449, the Court of Appeal upheld a decision by Mrs. Justice Theis, rejecting a father's appeal for the return of his children, X and Y, to Mauritius under the 1980 Hague Child Abduction Convention. The father argued procedural errors, including the court's reliance on non-expert opinion evidence from the child's solicitor-guardian. The appellate court found that the trial judge was correct in her approach, giving due consideration to the children's objections and the evidence presented. The judgment underscores the discretion courts have in child abduction cases, especially when assessing the child's best interests and the authenticity of their objections.
Case Overview:
Case Name: C v M (A Child) (Abduction: Representation of Child Party)
Court: Court of Appeal (Civil Division)
Judgment Date: 1 December 2023
Judges: Lady Justice King, Lord Justice Moylan, and Lady Justice Elisabeth Laing
Keywords: Child Abduction, Hague Convention, Child’s Objections, Solicitor-Guardian, Article 13(b)
Legal Issues:
The Role of a Solicitor-Guardian:
The appeal raised critical issues about the role of a solicitor acting as a guardian in cases under the 1980 Hague Convention. The father contended that the judge improperly relied on opinion evidence from the solicitor-guardian, who was not an expert, instead of a report from Cafcass.
Procedural Fairness and Discretion:
The father argued that there was a procedural irregularity in not adjourning the case to obtain further evidence from Cafcass and that the judge gave disproportionate weight to the child's objections, failing to consider protective measures in Mauritius adequately.
Court’s Analysis:
Admissibility of Opinion Evidence: The Court of Appeal confirmed that non-expert opinion evidence from a solicitor-guardian is admissible when it conveys relevant facts or personal perceptions. The father's failure to challenge this evidence at the trial stage meant it was too late to raise objections on appeal.
Discretion in Child Abduction Cases: The court emphasized that the discretion available to judges in child abduction cases is broad, especially when considering a child's objections to returning to another country. The judge's decision was well within this discretion, carefully balancing the policy objectives of the 1980 Convention against the specific circumstances of the case.
Judgment Summary:
The Court of Appeal dismissed the father's appeal, affirming that the original judgment was sound. The court found that the trial judge correctly assessed the evidence and properly exercised discretion in refusing to order the children's return to Mauritius.
Implications:
This judgment reinforces the broad discretion courts have in Hague Convention child abduction cases, particularly in considering the voice of the child. It also highlights the potential need for clearer guidance on the role of solicitor-guardians in such cases to ensure consistency and fairness in the judicial process.
References:
1980 Hague Child Abduction Convention
Family Procedure Rules 2010
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