LexisLibrary and LexisPSL
Sign up for a free trial today and get full access for a weekTrial
' … This court is solely concerned with whether we have any jurisdiction to entertain an appeal against the decision of the Court of Appeal that the Romanian order should not be registered and enforced in this country ...
 [The father] faces the serious difficulty that article 34 clearly states that the decision on appeal may “only” be contested by the notified proceedings. On the face of it, therefore, as [the Ministry of Justice asserts], if there were no relevant notification, there would be no possibility of further challenge.'
' The question of whether and how the child’s voice was to be heard in the proceedings was a separate question from the weight to be given to his wishes and feelings:
" … the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in section 1(3)(a) [of the Children Act 1989] like that in article 12(1) [of the United Nations Convention on the Rights of the Child 1989] relates to the weight to be put upon a child’s wishes and feelings, not their participation."’
' I have regard to the guidance contained in Practice Direction 16A, paragraph 7.2, as guidance not as a directive, and there I note that one reason for justifying the unusual course of appointing a guardian is that the child has a standpoint or interest inconsistent with, or incapable of being represented by any of the adult parties. I do not see, at the moment, where David's interest in this application is being represented.'Registration of an order under Brussels IIA is an administrative step, which ‘requires a judicial act’ (Re S (Foreign Contact Order)  EWCA Civ 993,  1 FLR 982, para ). It was this administrative act which, in effect, was the application before Peter Jackson J. He refused this under Art 23(b) of Brussels IIA (one of the seven grounds under that article), which says:
'Article 23The court held that recognition failed under Art 23(b), not because the Romanian Court failed to provide the opportunity to be heard, but because the court there did not consider ‘whether to give [him] an opportunity to be heard’ (para  below). Briggs LJ summarised this as:
Grounds of non-recognition for judgments relating to parental responsibility A judgment relating to parental responsibility shall not be recognised: … (b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought ...'
' To my mind the violation did not lie simply in not giving him that opportunity ... Here, the violation lay in failing to give that basic question any consideration at all.It is what the Court of Appeal said of, first, what was meant by the child’s ‘opportunity to be heard’ and of it being a ‘fundamental principles of procedure’ of a Member State; and secondly, as to the position of that fundamental principle in English law and procedure that this note is concerned.
 Article 23 contains exceptions to the core principle of mutual recognition which lies at the heart of BIIR. It must therefore be narrowly construed. But I do regard the failure even to consider whether to give David an opportunity to be heard as fully deserving being described as a violation of a fundamental principle of the procedure of our courts ...'
Pre-order the 2018 edition due out in May
' It is to be noted from the terms of Art 23(b) that if the judge is satisfied that there has been a violation of a fundamental principle of procedure, then there is no discretion in the consequence: the order shall not be recognised and accordingly cannot be enforced under the Regulation. In my judgment nothing turns on any distinction that there may be between a violation and a breach. If the question is fundamental and it was not asked by the court, then that would be a sufficient failure to comply.'So what is an opportunity to be heard? An alternative term is ‘participation’. In the Family Procedure Rules 2010 amendments proposed by the Vulnerable Witnesses and Children Working Group – the ‘Amendment X Regulations 2015’, which are likely to come into operation in Autumn 2016 in some form – puts the matter thus:
'3A.2 The court’s duty to consider whether a child should participate in proceedings
(1) The court must consider whether a child should participate in the proceedings by reason of meeting one of the conditions set out in paragraphs 2(a), (b) or (c) and if so, make a direction that the child should participate.
(2) The conditions are that the child is— (a) a party to the proceedings; (b) the subject of the proceedings but not a party to them; or (c) otherwise affected by matters in the proceedings.'
'(a) ascertainable wishes and feelings of the child concerned (considered in the light of [the child’s] age and understanding.'
' But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents' views.'Practice of English courts recognises this ‘fundamental principle of procedure’; said Ryder LJ:
' Far from section 1(3)(a) CA 1989 being merely a checklist factor that is designed to ensure comprehensive evaluation of a welfare question, it is plainly an example of domestic legislation giving force to a fundamental principle of procedure. The same principle is to be found in article 11.2 BIIR (using the European language for the same concept: "it shall be ensured that the child is given the opportunity to be heard during the proceedings").'And once the child was of an age to have a view, Art 23(b) demands that he or she has an opportunity to be heard. It is clear beyond doubt that this is the law in relation to any children proceedings in England and Wales after Re D (A Child) (International Recognition)  EWCA Civ 12,  1 WLR 2469. Briggs LJ delivered a short judgment concurring with Ryder LJ, which included:
' … Although some might regard the age of seven as lying near the borderline above which the giving of such an opportunity might be regarded as routine, the very large implications for [David] of the decision sought by his father, namely a complete change in his main carer and a move to a country in which he had not lived since very soon after his birth, cried out for consideration of the question whether he should be heard, all the more so since the mother, who might have been supposed to be likely to put the case for preserving the status quo, appeared to be taking no part in the appeal.'
' … If and to the extent that [the child’s] Art 8 rights are engaged, then that will carry with it the important procedural right to be ‘involved in the decision-making process, seen as a whole, to a degree sufficient to provide [her] with the requisite protection of [her] interests’ see W v United Kingdom (1988) 10 EHRR 29, para . However, although that may, it does not necessarily, carry with it the right to be represented or the right to party status: see ZH (Tanzania), paras 34-37 …'It remains a fundamental principle of English law in children proceedings in any jurisdiction where CA 1989 s 1(3)(a) is – or may be – engaged, that the child’s participation be considered. This principle is confirmed and explained by Ryder LJ in Re D (A Child) (International Recognition).