Family Law Titles
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(Family Division; Ryder J; 14 March 2008)
In an unusual case, four relatively old, articulate, close in age children (16, 13, 11 and 9) with very similar views, who all vigorously and apparently rationally objected to a return to France, were granted separate representation. The eldest child fell outside the Convention in any event; applying the non-Convention test it would be extraordinarily paternalistic and destabilising for the court to determine that it was not in the best interests of an articulate, mature and intelligent 16-year-old to be separately represented. There would be little additional expense and delay in the separate representation of the three younger children, and, applying the Convention test, the younger three children were able to put submissions and defences distinct from those put by the mother, concerning both habitual residence and an Art 13(b) defence in relation to the potential separation of the siblings. By the nature of their ages and understanding and their experiences, the substance of the issues in the proceedings had already well and truly intruded into their lives. Not having the opportunity to say what they thought and why they thought it was more likely to cause them harm than allowing them to express their views and wishes and to have their positions advocated professionally by their lawyers. It would be emotionally harmful for any one of the children to be refused permission to be separately represented where another was permitted to be so.
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