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S (A Child) - The Voice of the Child under the Inherent Jurisdiction

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Lord Justice Ryder gave the lead judgment in S (A Child) (Abduction: Hearing the Child)  [2014] EWCA Civ 1557 a case concerning a decision to order the summary return of a 7 year old child to the Russian Federation under the Inherent Jurisdiction of the High Court. The judge in the High Court had ordered the child’s return notwithstanding that there was no independent welfare evidence before the court. The absence of welfare evidence from the child’s perspective, and any evidence as to her wishes and feelings, formed the basis of the challenge to the return order made. The appeal was allowed.

Lord Justice Ryder agreed with the submissions made on behalf of the Appellant namely:

i) While a child's best interests are a 'primary consideration' within Hague Convention proceedings (see E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144 at [18]), they are the paramount consideration when considering an application for return in the exercise of the inherent jurisdiction (see J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80 at [22] to [25]).

ii) The requirement to hear the child must logically apply with no less force in proceedings where there is no Convention policy of return i.e. there is in the inherent jurisdiction an unfettered perspective on welfare with only a limited presumptive starting point in favour of return (see Re J at [31]).

iii) In determining an application for return in the inherent jurisdiction, the court must focus on "the individual child in the particular circumstances of the case" (see Re J at [29]). It is a commonplace that in the exercise of the inherent jurisdiction a focus on the individual child and his or her circumstances will include a consideration of the child's wishes and feelings as an element of that child's welfare. It is good practice for evidence to be obtained by a report provided by a Cafcass practitioner or other expert, whether or not the child is joined to the proceedings as a party.

iv) The good practice applicable in the exercise of the inherent jurisdiction in wardship has been translated in analogous circumstances into a statutory checklist of factors in section 1(3) of the Children Act 1989. That checklist includes at section 1(3)(a) "the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)". The checklist does not apply to these proceedings but can be taken to be determinative of good practice in this jurisdiction and how the principle of effective access to justice for the child is to be ensured.

In these circumstances he decided:

“there is an obligation in principle on the High Court sitting in its inherent jurisdiction in relation to an abduction application to consider whether and how to hear the child concerned.”

The decision confirms that the obligation to consider the voice of the child applies where the application is brought under the Inherent Jurisdiction of the High Court in the same way that it does in Hague Convention 1980 proceedings and those to which Brussels II Revised applies.

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