|Judgments - In re M (FC) and another (FC) (Children) (FC)
56. Nor do I think that article 20 and the European Convention on Human Rights take matters any further in this case. All of the parties have the right to respect for their homes and family lives. The father has a family life with his children, whom he loves and who love him, just as the children have a home and family life with their mother. Returning the children against their will would be a graver interference with their rights than failing to do so would be with the rights of the father. Calculating the proportionality of interfering with his rights against the proportionality of interfering with the rights of the mother and the children would lead to the same result.
57. I would finally comment that, exceptional or not, this is a highly unusual case. Cases under the second paragraph of Article 12 are in any event very few and far between. They are the most child-centric of all child abduction cases and very likely to be combined with the childs objections. As pointed out in Re D, it is for the court to consider at the outset how best to give effect to the obligation to hear the childs views. We are told that this is now routinely done through the specialist CAFCASS officers at the Royal Courts of Justice. I accept entirely that children must not be given an exaggerated impression of the relevance and importance of their views in child abduction cases. To order separate representation in all cases, even in all childs objections cases, might be to send them the wrong messages. But it would not send the wrong messages in the very small number of cases where settlement is argued under the second paragraph of article 12. These are the cases in which the separate point of view of the children is particularly important and should not be lost in the competing claims of the adults. If this were to become routine there would be no additional delay. In all other cases, the question for the directions judge is whether separate representation of the child will add enough to the courts understanding of the issues that arise under the Hague Convention to justify the intrusion, the expense and the delay that may result. I have no difficulty in predicting that in the general run of cases it will not. But I would hesitate to use the word exceptional". The substance is what counts, not the label.
58. For the reasons given earlier, therefore, I would allow this appeal and dismiss the Hague Convention proceedings.
LORD BROWN OF EATON-UNDER-HEYWOOD
59. I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond and for the reasons she gives, with which I entirely agree, I too would allow this appeal and make the order proposed.
|© Parliamentary copyright 2007||Prepared 5 December 2007|