The role of a judge meeting a child who was the subject of abduction proceedings under the Hague Convention should be largely that of a passive recipient of whatever communication the child wished to transmit, which the judge should not probe or seek to test.

The Court of Appeal so held when allowing an appeal by the mother from the order dated 5 November 2013 of Parker J [2013] EWHC 3381 (Fam); [2013] CN 1953 granting the father’s application under the Child Abduction and Custody Act 1985 for the immediate return to Malta of their 13-year-old daughter. The mother had resisted the application in reliance on the exceptions in article 13 of the Hague Convention (as scheduled to the 1985 Act) for cases where the child objected to being returned and cases where there was a grave risk that return would expose the child to psychological harm. The principal ground of appeal was that the judge had erred in obtaining evidence from the child in contravention of the Guidelines for Judges meeting Children who are subject to Family Proceedings approved by the President of the Family Division in April 2010, and using that evidence to support her rejection of the evidence of the CAFCASS case officer. The child was joined as a party to, and supported, the appeal.

MOORE-BICK LJ, delivering the judgment of the court, said that none of the relevant reported cases went further than the Guidelines by suggesting that a judicial meeting might be used for the purpose of obtaining evidence from the child. The judge’s conduct of the interview in the present case had fallen on the wrong side of the dividing line for six reasons: (i) During that part of any such meeting in which the judge was listening to the child’s point of view, the judge’s role should be largely that of a passive recipient of whatever communication the young person wished to transmit. (ii) The judge should not probe or seek to test what the child wished to say. (iii) A meeting prior to the judge deciding on the central issues should be for the dual purposes of allowing the judge to hear what the child might wish to volunteer and for the child to hear the judge explain the nature of the court process. It was difficult to envisage circumstances in which such a meeting would last for more than 20 minutes. (iv) If the child volunteered potentially relevant evidence, the judge should report back to the parties and determine whether, and, if so, how, such evidence should be adduced. (v) In the present case the judge had, by seeking to “probe” the child’s wishes and feelings over the course of more than an hour by asking 87 questions, strayed significantly into evidence gathering. (vi) The judge had also erred in regarding the meeting as an opportunity for the child to make representations or submissions. The material gleaned by the judge from their encounter had led to her central conclusion that the child’s wishes and feelings lacked rationality, and her analysis could not be allowed to stand. Accordingly, her order should be set aside and the case should be reheard before a different judge.