Thursday, May 01, 2014

Re KP: A child's meeting with the judge is not for the purpose of gathering evidence

A brief summary of Re KP [2014] EWCA Civ 554.

This was a mother's appeal against an order that her child should return to Malta. The child is now 13 and a half. The mother brought her to this country in June 2013, without the knowledge or consent of the father. The father issued Hague Convention proceedings and the mother relied upon the child's objections and Article 13(b).

The matter was heard by Mrs Justice Parker, who interviewed the child and concluded that she was, in reality, very confused and was not, in fact, objecting to a return to Malta as such on any cogent or rational grounds. She also found the Article 13(b) exception had not been established. Accordingly, she ordered the child's return.

The principal ground for appeal was that the judge obtained and then relied upon evidence from the child received during her meeting with the child. Essentially, it was submitted that the judge was in error in using the evidence thus obtained to support her rejection of the clear and consistent evidence of the CAFCASS officer regarding the child's objections, and in doing so the judge significantly contravened the Guidelines for Judges Meeting Children who are Subject to Family Proceedings.

The unanimous Court of Appeal judgment was given by Lord Justice Moore-Bick. After looking in detail at the Guidelines and the approach of the courts to "hearing" children in Hague cases he set out the essence of the issue as follows:
"In stating that 'it cannot be stressed too often that the child's meeting with the judge is not for the purpose of gathering evidence' the Guidelines indicate that there is a firm line to be drawn between a process in which the judge and a young person simply encounter each other and communicate in a manner which is not for the purpose of evidence gathering, and a process in which one of the aims of the meeting is to gather evidence."
Their Lordships concluded:
"Despite having great respect for this judge, who is highly experienced in the conduct of proceedings where the voice of the child needs to be heard, our conclusion is that on this occasion the conduct of the judicial interview did indeed fall on the wrong side of the line."
The reasons supporting this conclusion were as follows:
"i) During that part of any meeting between a young person and a judge in which the judge is listening to the child's point of view and hearing what they have to say, the judge's role should be largely that of a passive recipient of whatever communication the young person wishes to transmit.

ii) The purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say. The meeting is primarily for the benefit of the child, rather than for the benefit of the forensic process by providing additional evidence to the judge. As the Guidelines state, the task of gathering evidence is for the specialist CAFCASS officers who have ... developed an expertise in this field.

iii) A meeting, such as in the present case, taking place prior to the judge deciding upon the central issues should be for the dual purposes of allowing the judge to hear what the young person may wish to volunteer and for the young person to hear the judge explain the nature of the court process. Whilst not wishing to be prescriptive, and whilst acknowledging that the encounter will proceed at the pace of the child, which will vary from case to case, it is difficult to envisage circumstances in which such a meeting would last for more than 20 minutes or so.

iv) If the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced.

v) The process adopted by the judge in the present case, in which she sought to 'probe' [the child's] wishes and feelings, and did so over the course of more than an hour by asking some 87 questions went well beyond the passive role that we have described and, despite the judge's careful self-direction, strayed significantly over the line and into the process of gathering evidence (upon which the judge then relied in coming to her decision).

vi) In the same manner, the judge was in error in regarding the meeting as being an opportunity for [the child] to make representations or submissions to the judge. The purpose of any judicial meeting is not for the young person to argue their case; it is simply, but importantly, to provide an opportunity for the young person to state whatever it is that they wish to state directly to the judge who is going to decide an important issue in their lives."
Their Lordships found that this "contaminated interview" had influenced Mrs Justice Parker's decision to return the child to Malta. Accordingly, the appeal was allowed and a re-hearing was directed.

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