The Court of Appeal technically allowed an appeal by the father of three children, aged nine, 12, and 14, in order to vary the decision of Brenda Hoggett QC, sitting as a deputy High Court judge, that although the children should be separately represented by a solicitor on the child care panel at the main hearing concerning their future residence, they were not to be added as separate parties to the proceedings. (The father objected to their even being represented separately.)
Caroline Willbourne (Reynolds Porter Chamberlain) for the father; Howard Shaw (Spencer Gibson, Sutton) for the mother; Michael J G Nicholls, solicitor (Official Solicitor) as amicus curiae.
LORD JUSTICE BUTLER-SLOSS said the parents were both Australian and the children were Australian citizens. They had come to England in 1989 intending to return to Australia in 1994. The marriage broke down and the mother left home in November 1992, while the children remained with their father.
The mother applied for interim contact on 19 August 1993. The deputy judge raised the question whether the children, having been interviewed by a court welfare officer on the interim contact issue, should be separately represented at the hearing of the main residence issue, since the father, if successful, would seek to take the children permanently out of the jurisdiction, to Australia.
The judge ordered that a solicitor on the child care panel should represent the children at that hearing. She did not, however, add the children as parties to the proceedings. The question now arose as to whether there was jurisdiction to order separate representation of the children in a High Court case under the Children Act without adding them as parties to the proceedings.
Minors taking part in High Court civil proceedings as plaintiff, defendant or intervener acted through a next friend or guardian ad litem and were joined as parties: see Rules of the Supreme Court, Order 80, rule 2. The same procedure applied in wardship proceedings, under rule 5 of the Family Proceedings Rules 1991 (SI 1247).
The procedure in private law applications under Part II of the Children Act was also governed by the 1991 Rules, rule 9 of which provided for the child to be separately represented. But the rules did not state whether the child was to be a party.
The court had not heard sufficient argument for a clear conclusion on this technical point, which should be left open. Her Ladyship's present view was that in High Court proceedings, the 1991 Rules did not alter the general procedural rules laid down in RSC Order 80, and children were to be parties.
Moroevoer, children intervening in family applications in the High Court certainly ought for practical reasons to be made parties in order to be clear about their position and to obviate any difficulties over who represented them. Regardless of the strict necessity of making them parties, these three children ought to be joined as parties if they were to have a guardian ad litem.
The appeal should be allowed, not in substance, but for the technicality of joining the children as parties.
There was no reason to interfere with the remainder of the judge's order: the appointment of the existing guardian ad litem should be confirmed. The court welfare officer, having started her investigations, should remain on the case.
LORD JUSTICE BALCOMBE and SIR CHRISTOPHER SLADE concurred.Reuse content