Case No: B4/2007/2819
Neutral Citation Number: [2007] EWCA Civ 1463
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
PRINCIPAL REGISTRY
(MR JUSTICE CHARLES)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 20th December 2007

Before:

LORD JUSTICE THORPE
and
LORD JUSTICE WALL
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IN THE MATTER OF B (a Child)

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Mr D Williams (instructed by Messrs Reynolds Porter Chamberlain LLP) appeared on behalf of the Appellant Child.

Mr M Jarman (instructed by Messrs Brethertons LLP) appeared on behalf of the Respondent Mother.
Ms D Taylor (instructed by Messrs Kingsley Napley LLP) appeared on behalf of the Respondent Father.

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Judgment
Lord Justice Thorpe:

1.	On Tuesday we heard Mr Williams seeking permission to appeal a most careful judgment of Charles J given on 3 December refusing separate representation for the child Zaen, a 14 year old caught in the midst of a battle between his parents as to the jurisdiction in which he should live.  He has stayed over following a contact visit to his father in this jurisdiction, which was arranged with his mother who is the ordinary primary carer, resident in Norway.  Now it is important to emphasise that the application that we are determining this morning is a very different application to the one that we contemplated on Tuesday, and that is the result of a hearing on notice which has resulted in a great deal more information emerging as to the proceedings in Norway and the continuing course of those proceedings.  So in this jurisdiction we have the Hague Convention proceedings seeking the return of the child following a wrongful retention.  The proceedings in Norway are proceedings to establish contact arrangements between parents who are living in different jurisdictions, and the Norwegian proceedings produced an agreed order of 12 June 2006, under the terms of which the 2007 holiday visit took place.  

2.	Obviously the wrongful retention has engaged the Norwegian court process, and there was a hearing in November when both parties attended what we would recognise as a conciliation appointment.  No agreement was reached and there is to be a two day trial in Norway fixed for 7 and 8 March 2008.  Now the helpful skeleton from Mr Jarman, who represents the plaintiff mother, informed us that the expert appointed by the Norwegian court, a clinical psychologist by the name of Dr Borg, is to visit this country in order to discuss with Zaen his apparently dramatic shift from extreme reluctance to have contact with father to his asserted present position which is reluctance to return to his mother, so profound that he would rather enter the Norwegian care system.  So the information that Dr Borge is to visit this jurisdiction is certainly fully substantiated by Mr Jarman’s reference (or it may have been Ms Taylor’s reference) to a letter at C82 written by Dr Borge on 25 September 2007.  He said that he had recently spoken with Zaen on the telephone but that, given the difficulties, the telephone conversation was quite insufficient and that something more was needed.  So we now have from Ms Taylor the information that Dr Borge has arranged to visit and to interview and discuss with Zaen on or over 28/29 December.  So we have the fixture in Norway on 7/8 March.  We have the fixture in this jurisdiction, 24 January, for the Hague trial.  Now clearly for the judge one of the core issues is going to be an assessment of where Zaen truly stands, both in relation to his past experiences and in relation to his future emotional being.  

3.	Extraordinarily there is a clinical psychologist with 18 months of experience of the family, and he is going to be in a position to write a report shortly after his visit to this jurisdiction.  It is crucial that immediate arrangements are made for the admission of his evidence, garnered for the Norwegian proceedings, into the London proceedings.  This was simply not contemplated at any earlier appointment, either before Charles J or before some other judge of the division; and we have in argument emphasised the need for the central authority in London to communicate with the Norwegian central authority, today or tomorrow at latest, to warn them of the need to obtain from Dr Borge a written report immediately after his return to Norway, to have that immediately translated into English and equally immediately thereafter communicated to the central authority here.  Now since Dr Borg’s contribution is likely to be so influential, it is obvious that both parents will want to react to his report, to comment upon it, to disagree with it, or to adopt parts of it as may be dictated by its content.  But in my judgment it would be plainly unjust if Zaen did not have the same opportunity, and I do not see how we can ensure that he has that opportunity unless Mrs Usher continues to look after him.  I would also draw comfort from Mrs Usher’s continuing presence in the case.  She has enormous experience of litigation in this specialist area, and she will be able to assist the other solicitors in seeing that this vital piece of evidence is gathered at the earliest opportunity and made available to the parties.  One of the consequences of the application, which has been very ably advocated by Mr Williams, is that the father has amended his defence to plead an article 13(b) alternative, on the grounds of physical and emotional maltreatment of Zaen in the maternal household.   Mr Williams has made the point that it has been weakly pleaded and that his client, the child, should have the opportunity to make that case -- the primary opportunity, since he has the evidence and he will have to live with the consequences if the case fails.  I would not have interfered with the characteristically careful judgment of Charles J on that ground.  I would allow this appeal and grant the representation that Charles J refused, only on the basis of information which has become available to us today which was not available to the judge below.  I would not criticise in any way the approach adopted by Charles J or his careful reasoning for his refusal, indeed I would pay tribute to its comprehensive care; but the situation that we have uncovered this morning satisfies me that anything less than representation for this child, in the very exceptional circumstances that have emerged, would risk injustice.

Lord Justice Wall:

4.	I agree.  I add a few words of my own because we are allowing this appeal, having given permission for it to be advanced.  Like My Lord, I would not wish anything I say to be taken in any way as any criticism of the judge.  The judge clearly exercised his discretion in a conscientious way in accordance with the authorities as he perceived them to be, and, like My Lord, had the matter simply been an appeal against the exercise of a judicial discretion on the part of the judge, I would have found some difficulty in allowing it.  However, I am entirely satisfied, in the circumstances as they have been revealed to us today, that justice plainly requires Zaen to be separately represented in the proceedings.  I wish to add one or two other observations.  The first is that there must be no adjournment of the hearing in January.  This case started on 23 August.  It is most unsatisfactory that it is only now coming towards its conclusion.  Hague proceedings are meant to be swift and summary, and these have been neither.  Secondly this case plainly points to the need, at the earliest stage in the proceedings, for the parties who are meant to have expertise in this field through their legal advisers to address their minds spontaneously and timeously for the issues arising in the case.  I find it wholly unsatisfactory, first of all that the case was not reached on a number of occasions, and secondly that the father’s defence is only amended at a very, very late stage in the proceedings; and is amended in a form which is not satisfactory to the child. 

5.	In my judgment there is no other mechanism in this case for Zaen’s defence to be properly put before the judge than through separate representation.  I wish to make it quite clear that in my view we are not opening any floodgates; we are not disapproving the approach adopted by the judge when the matter was before him; and I resile from nothing that I said in the case of Re: H (A Child) [2006] EWCA Civ 1247.  But for the reasons My Lord has given, in my judgment it is necessary for Zaen to be represented before us and before the judge and I would therefore allow the appeal.

Order: Application granted; appeal allowed.