Child’s opportunity to be heard: a fundamental principle
In Re D (A Child) (International Recognition)  EWCA Civ 12,  1 WLR 2469 the Court of Appeal considered whether they should recognise a Romanian appeal court’s judgment as to custody of a seven-year old child. They refused to do so. The Romanian court, they said, had not considered whether they should provide an opportunity to be heard by the court (as is required by Council Regulation (EC) No. 2201/2003: ‘BIIR’ Art 23(b): cited and explained below).
The reasoning for the Art 23(b) outcome in the Court of Appeal raises questions as to:
- What is meant by an opportunity for the child to be heard by the court;
- What ‘fundamental principles of procedure’ (see Art 23(b)) are engaged in this process; and
- How are any such ‘fundamental principles’ applied in English law and practice?
This note is concerned only with the child’s opportunity to express a view to the court (see Guidelines for judges meeting children who are subject to family proceedings of 2010,  2 FLR 1872: https://fnf.org.uk/phocadownload/downloads/guidelines_for_judges_meeting_children.pdf) as distinct from the quite separate subject of children giving evidence in family proceedings. The importance of children’s views being heard – as opposed to necessarily followed – was stressed by Lady Hale in the Supreme Court in Re W (Children) (Abuse: Oral Evidence)  UKSC 12,  1 FLR 1485).
A jurisdiction question
But first, a jurisdiction point arose: could the Supreme Court deal with an appeal from the Court of Appeal on recognition. For reasons which do not go to the question of children being heard by the court, the Supreme Court held that they had no jurisdiction to consider an appeal (Re D (A Child)  UKSC 34):
 … This court is solely concerned with whether we have any jurisdiction to entertain an appeal against the decision of the Court of Appeal that the Romanian order should not be registered and enforced in this country….
 [The father] faces the serious difficulty that article 34 clearly states that the decision on appeal may “only” be contested by the notified proceedings. On the face of it, therefore, as [the Ministry of Justice asserts], if there were no relevant notification, there would be no possibility of further challenge.
They therefore struck out the appeal (Lady Hale, with whom all other SCJJ agreed, gave the only judgment) as to notification given by the British Government to the European Commission pursuant to Article 34 of Brussels II Revised (Council Regulation (EC) No. 2201/2003: ‘BIIR’). The case turned on the extent to which the child’s views had been considered in the Romanian court, as required by BIIR.
In so stating Lady Hale confirmed – as she was bound to do – that the law remained as it was before the Court of Appeal (Re D (A Child) (International Recognition) (above) where, she said, the Court of Appeal had held:
 The question of whether and how the child’s voice was to be heard in the proceedings was a separate question from the weight to be given to his wishes and feelings:
‘… the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in section 1(3)(a) [of the Children Act 1989] like that in article 12(1) [of the United Nations Convention on the Rights of the Child 1989] relates to the weight to be put upon a child’s wishes and feelings, not their participation.’
The child, known in the Court of Appeal as ‘David’ (born 8 November 2006), is habitually resident in this country, but the parents chose to litigate about his future in Romania. The father issued divorce and custody proceedings there in November 2007 and after a long series of hearings the Bucharest Court of Appeal decide in November 2013 that David should live with the father, on the basis that he could provide ‘the best moral and material conditions’. In February 2014, the father applied for the recognition and enforcement of this order by the English court. In May 2014 Peter Jackson J made David a party to the enforcement proceedings (Re D (Recognition and Enforcement of Romanian Order) (sub nom MD v AA & Anor  EWHC 2756 (Fam))  1 FLR 1272). His concerns included a comment from his own earlier judgment where he had ordered separate representation for David (cited at para  of  EWHC 2756):
 I have regard to the guidance contained in Practice Direction 16A, paragraph 7.2, as guidance not as a directive, and there I note that one reason for justifying the unusual course of appointing a guardian is that the child has a standpoint or interest inconsistent with, or incapable of being represented by any of the adult parties. I do not see, at the moment, where David’s interest in this application is being represented.
Registration of an order under BIIR is an administrative step, which ‘requires a judicial act’ (Re S (Foreign Contact Order)  EWCA Civ 993,  1 FLR 982 para ). It was this administrative act which, in effect, was the application before Peter Jackson J. He refused this under Art 23(b) of BIIR (one of the seven grounds under that Article), which says:
Article 23 Grounds of non-recognition for judgments relating to parental responsibility A judgment relating to parental responsibility shall not be recognised:… (b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;..
The court held that recognition failed under Art 23(b), not because the Romanian Court failed to provide the opportunity to be heard, but because the court there did not consider ‘whether to give [him] an opportunity to be heard’ (para  below). Briggs LJ summarised this as:
 To my mind the violation did not lie simply in not giving him that opportunity…. Here, the violation lay in failing to give that basic question any consideration at all.
 Article 23 contains exceptions to the core principle of mutual recognition which lies at the heart of BIIR. It must therefore be narrowly construed. But I do regard the failure even to consider whether to give David an opportunity to be heard as fully deserving being described as a violation of a fundamental principle of the procedure of our courts….
It is what the Court of Appeal said of, first, what was meant by the child’s ‘opportunity to be heard’ and of it being a ‘fundamental principles of procedure’ of a Member state; and secondly, as to the position of that fundamental principle in English law and procedure that this note is concerned.
Child’s Art 23(b) ‘opportunity to be heard’
The law remains as it was explained by the Court of Appeal; though it must be recalled that the views of Lady Hale (first as writer then as Law Commissioner, Brenda Hoggett and now as a judge) has been a central part of the debate on that ‘very large question’ (para  of her judgment in Re D cited above), including very recently (Listening to children: are we nearly there yet?: Lady Hale to the Association of Lawyers for Children Annual Conference, Manchester 20 November 2015 (http://alc.org.uk/uploads/Keynote_speech_2015.pdf).
Ryder LJ (with whom Briggs and Moore-Bick agreed) gave the main judgment. He started his review of the position under At 23(b): that there could be no recognition, and therefore no enforcement, if there has been violation of a ‘fundamental principle’:
 It is to be noted from the terms of article 23(b) that if the judge is satisfied that there has been a violation of a fundamental principle of procedure, then there is no discretion in the consequence: the order shall not be recognised and accordingly cannot be enforced under the Regulation. In my judgment nothing turns on any distinction that there may be between a violation and a breach. If the question is fundamental and it was not asked by the court, then that would be a sufficient failure to comply.
So what is an opportunity to be heard? An alternative term is ‘participation’. In the Family Procedure Rules 2010 amendments proposed by the Vulnerable Witnesses and Children Working Group – the ‘Amendment X Regulations 2015’ (https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf), which are likely (in some form) to come into operation in Autumn 2016 – puts the matter thus:
3A.2 The court’s duty to consider whether a child should participate in proceedings
(1) The court must consider whether a child should participate in the proceedings by reason of meeting one of the conditions set out in paragraphs 2(a), (b) or (c) and if so, make a direction that the child should participate.
(2) The conditions are that the child is— (a) a party to the proceedings; (b) the subject of the proceedings but not a party to them; or (c) otherwise affected by matters in the proceedings.
‘Fundamental principles’: crying out to be heard
A fundamental principle had been breached; and that fundamental principle was one which increasingly must run through all English child law. It starts, Ryder LJ stressed, with Children Act 1989, and especially with the centrally important CA 1989 s 1(3)(a). This must be applied to the particular child in ‘in context’, that is according to the child’s age at the time the consideration takes place (in this case, before Peter Jackson J, when David was eight).
Under s 1(3)(a) when making a decision about a child future, the court must consider (‘shall have regard to’) a number of factors, including the well-known:
(a) ascertainable wishes and feelings of the child concerned (considered in the light of [the child’s] age and understanding
This, said Ryder LJ (at para ), was a mandatory provision: ‘the parents cannot seek to avoid it’. He refused to accept that s 1(3)(a) was not a statement of fundamental principle. In support of that rejection he cited Lady Hale in Re D (A Child)  UKHL 51 sub nom Re D (Abduction: Rights of Custody)  1 FLR 961 at paras  to , and in particular:
 But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.
Practice of English courts recognises this ‘fundamental principle of procedure’ said Ryder LJ:
 Far from section 1(3)(a) CA 1989 being merely a checklist factor that is designed to ensure comprehensive evaluation of a welfare question, it is plainly an example of domestic legislation giving force to a fundamental principle of procedure. The same principle is to be found in article 11.2 BIIR (using the European language for the same concept: “it shall be ensured that the child is given the opportunity to be heard during the proceedings”).
And once the child was of an age to have a view Art 23(b) demands that he or she has an opportunity to be heard; and it is clear beyond doubt that this is the law in relation to any children proceedings in England and Wales after Re D (A Child) (International Recognition)  EWCA Civ 12,  1 WLR 2469. Briggs LJ delivered a short judgment concurring with Ryder LJ, which included:
 … Although some might regard the age of seven as lying near the borderline above which the giving of such an opportunity might be regarded as routine, the very large implications for [David] of the decision sought by his father, namely a complete change in his main carer and a move to a country in which he had not lived since very soon after his birth, cried out for consideration of the question whether he should be heard, all the more so since the mother, who might have been supposed to be likely to put the case for preserving the status quo, appeared to be taking no part in the appeal.
Participation of the child in proceedings
Participation of the child in our domestic proceedings was the subject of a growing jurisprudence, recalled Ryder LJ. It was specifically highlighted in Re D (A Child) (above), by Lady Hale, and by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4,  1 FLR 2170. These dicta were brought together by Sir James Munby P in Cambra v Jones (Contempt Proceedings: Child Joined as Party), said Ryder LJ, whom he cited as follows:
 … If and to the extent that [the child’s] Art 8 rights are engaged, then that will carry with it the important procedural right to be ‘involved in the decision-making process, seen as a whole, to a degree sufficient to provide [her] with the requisite protection of [her] interests’ see W v United Kingdom (1988) 10 EHRR 29, para . However, although that may, it does not necessarily, carry with it the right to be represented or the right to party status: see ZH (Tanzania), paras 34-37…
It remains a fundamental principle of English law, in children proceedings in any jurisdiction where CA 1989 s 1(3)(a) is – or may be – engaged, that child’s participation be considered; and this principle is confirmed and explained by Ryder LJ in Re D (A Child) (International Recognition) (above).
 Para 
  EWHC 913 (Fam),  1 FLR 263: proceedings to commit a child’s mother, where the child’s actions were part of the grounds for committal. In the case of a mature teenager the right to participation outweighed the paternalistic judgment of welfare (see Mabon v Mabon  EWCA Civ 634,  2 FLR 1011. The eldest child’s best interests were served by enabling her to participate in proceedings (whether or not European Convention Art 8 rights were engaged), affected her very profoundly, and in which she was very anxious to participate. Further, the court process might be assisted by the eldest child’s participation as a party rather than as a mere witness.