Re KP (A Child)  EWCA 554 (Court of Appeal (Moore-Bick, Black and McFarlane LJJ)
This case, which concerned proceedings under the Hague Convention in relation to a child, is of interest because, although some of the principles it sets out may resonate with CoP proceedings in which it is proposed that P should meet the judge, rather than give formal evidence.
In this case, the Court of Appeal found that the judge at first instance had strayed beyond the acceptable parameters, while noting that best practice as to the right way to hear the child’s voice in such cases was still developing. (At least there was some guidance to assist practitioners and the court – in the CoP, there is as yet no guidance about hearing from P, cross-examination of P, or P meeting with the judge).
The Court of Appeal set out a number of ‘themes’, as follows:
- There is a presumption that a child will be heard during Hague Convention proceedings, unless this appears inappropriate;
- In this context, 'hearing' the child involves listening to the child's point of view and hearing what they have to say;
- The means of conveying a child's views to the court must be independent of the abducting parent;
- There are three possible channels through which a child may be heard:
- Report by a CAFCASS officer or other professional;
- Face to face interview with the judge;
- Child being afforded full party status with legal representation;
- In most cases an interview with the child by a specialist CAFCASS officer will suffice, but in other cases, especially where the child has asked to see the judge, it may also be necessary for the judge to meet the child. In only a few cases will legal representation be necessary;
- Where a meeting takes place it is an opportunity:
- for the judge to hear what the child may wish to say; and
- for the child to hear the judge explain the nature of the process and, in particular, why, despite hearing what the child may say, the court's order may direct a different outcome;
- a meeting between judge and child may be appropriate when the child is asking to meet the judge, but there will also be cases where the judge of his or her own motion should attempt to engage the child in the process.
54. None of the reported cases goes further than the guidelines by suggesting that a judicial meeting might be used for the purpose of obtaining evidence from the child or going beyond the important task of simply hearing from the child that which she may wish to volunteer to the judge. As Lord Wilson SCJ describes in Re LC at para 55, where a child's evidence might prove determinative of an issue, it may be adduced by an appropriate process into the full proceedings by witness statement, report from a CAFCASS officer or, where the child is a party, by her advocate's cross-examination of the adult parties and closing submissions. Going further, where oral evidence is required, Lord Wilson indicated that an age appropriate process should be deployed.
The Court of Appeal went on to accept submissions that:
- 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.
- 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, as Mr Gupta submits, developed an expertise in this field.
- 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.
- 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.
- The process adopted by the judge in the present case, in which she sought to 'probe' K'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).
- In the same manner, the judge was in error in regarding the meeting as being an opportunity for K 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.
The Court of Appeal specifically noted the position in the CoP where a judge may well meet with P on occasion. It appears that they considered that there were strong analogies to be drawn between the two situations (see paragraph 35).
There is an increasing tendency for judges to meet with P – and considerable support from Strasbourg for what may even amount to a rule (or at least a presumption) that a judge considering taking a decision with significant consequences flowing from a declaration of incapacity in a material regard must meet P (see e.g. X and Y v Croatia ((Application No. 5193/09, decision of 3.11.11). This case shows the care that judges must exercise when they undertake this important exercise.