ABDUCTION: W v W [2009] EWHC 3288 (Fam)

10 DEC 2009

(Family Division; Baker J; 10 December 2009)

The family lived in Australia. According to the mother and the eldest child, aged 17, the father was regularly abusive and occasionally violent throughout the marriage. Shortly before the Australian court was due to consider granting the mother a violence restraining order, the mother removed the 11-year-old from Australia and, with the eldest child, travelled to England. The father sought the summary return of the 11-year old to Australia. The 17-year-old sibling applied to be joined as a party to the proceedings, on the basis that she was extremely concerned as to the welfare of both the child and the mother, who was said to be unable to protect the child from the father's violence. The 17-year-old argued not only that the court had a discretionary power to join her, as a child, if it were in her best interests, but also that she was a mandatory defendant to the application under Family Proceedings Rules, r 6.5(e), which provided that defendants to an application should include 'any other person who appears to the court to have a sufficient interest in the welfare of the child'.

The President's obiter dicta in S v B (Abduction: Human Rights) [2005] EWHCC 773 (Fam) [2005] 2 FLR 878 provided a strongly persuasive authority as to the interpretation of Family Proceedings Rules r 6.5(e). In order to be entitled as of right to be joined as a mandatory defendant under r 6.5(e), an applicant must therefore establish that he or she was directly concerned with the welfare of the subject child in the sense that he or she had (i) provided care for the child and/or (ii) had a continuing or potential interest in the provision of care for the child, or (iii) had some legal or practical responsibility for the child's welfare. The President's definition was capable of encompassing everyone or nearly everyone likely to be able to demonstrate an interest in the welfare of the child sufficient to be heard on the question whether to order a return of the child to the country from which he had allegedly been wrongfully removed. The rule defining the categories of persons to be joined as defendants to Hague applications was expressed in mandatory terms; the court did not have a discretion not to join as a defendant a person who could demonstrate that they came within r 6.5(e). The 17-year-old certainly fell within r 6.5(e) in the sense that she had a continuing and potential interest in the provision of the child's care and had some practical, albeit not legal, responsibility for his welfare.

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