Case Analysis: Re A and B (Separate Representation) [2024] EWHC 2834 (Fam)
The case of Re A and B (Separate Representation) explores the circumstances in which children may be separately represented from their guardians in legal proceedings. This decision, handed down by Sir Andrew McFarlane, President of the family Division, is a significant development in family law, particularly in cases involving the 1980 Hague Convention on the Civil Aspects of International child Abduction.
This blog examines the practical implications, the background, and the court’s reasoning in rejecting the application for separate representation for the two children involved.
Practical Implications of This Case
This case provides clarity on how courts assess applications for separate representation and the threshold for setting aside final return decisions under the 1980 Hague Convention. Key practical takeaways include:
- Assessing Separate Representation: The court will evaluate factors such as:
- The child’s understanding of the case and ability to give independent instructions (per Rule 16.29 of the Family Procedure Rules 2010).
- The degree to which the child’s views have been compromised, particularly by parental influence.
- The purpose and merits of the proposed application that the child seeks to pursue.
- Threshold for Setting Aside Final Return Decisions: Courts take a robust approach to setting aside Hague Convention orders, requiring a “fundamental change in circumstances” that undermines the basis of the original decision. This ensures that cases are not reopened without compelling new evidence.
- Guidance for Practitioners: McFarlane P emphasised the importance of evaluating a child’s autonomy carefully, balancing the need for representation with the risks of harm arising from direct participation.
Background of the Case
The case involved two children, brothers aged 12 (A) and 10 (B), whose mother wrongfully removed them from the United States in August 2022. The family, all U.S. citizens (with the mother also holding Bahamian nationality), had been embroiled in extensive litigation following the mother’s allegations of abuse by the father.
The children’s objections to returning to the U.S. had been considered during the substantive Hague Convention proceedings. The court found the mother’s allegations unfounded after investigations by U.S. authorities and a first-tier tribunal in Auckland.
In June 2024, the court ordered the children’s return to the U.S. Their mother’s appeal was refused in August 2024. Meanwhile, the children sought separate representation, claiming a fundamental change in circumstances, including:
- A’s suicidal thoughts regarding the return.
- Their objections to return becoming more intense and specific.
- Their integration into life in the Auckland after over two years of residence.
Despite their emotional testimony, the court ultimately rejected their application.
Court’s Decision
Separate Representation Application
The court ruled against separate representation for both A and B. Key points include:
- Merits of the Set Aside Application:
The court found that the children’s proposed set aside application had no realistic prospect of success. The original decision had already considered their objections and A’s emotional state. Without a “fundamental change in circumstances,” the application failed to meet the required threshold. - Compromised Autonomy:
McFarlane P expressed concern over the influence of the mother on the children’s views. Both boys were described as being “wholly immersed” in their mother’s perspective, making it difficult to assess their independent understanding of the issues. - Insufficient Understanding:
While A was deemed to have sufficient understanding to instruct a solicitor directly, the court found no justification for granting separate representation because the proposed application was unarguable. In contrast, B did not yet possess the requisite understanding, and his position could not be conflated with A’s. - Role of Cafcass Guardian:
The court emphasised that the children’s interests would remain adequately represented by their Cafcass guardian and her solicitors in the “fine-tuning” of the return order.
Guidance on Separate Representation
The judgment reaffirmed the factors outlined in Re CS (Appeal FPR 2010, Rules 16.6: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) for assessing a child’s understanding, including:
- The child’s intelligence and emotional maturity.
- The child’s understanding of the litigation process and its implications.
- Risks of harm from direct participation versus exclusion from proceedings.
Conclusion
Re A and B (Separate Representation) underscores the high threshold for separate representation and the robust approach courts take in Hague Convention proceedings. The decision highlights the importance of safeguarding children’s welfare while ensuring their autonomy is considered in appropriate circumstances.
For practitioners, this case serves as a crucial reference for navigating complex issues of representation and return orders in international child abduction cases.
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