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A moment of Clarity

Child relocation - Children's voices should be heard

Family lawyers at Irwin Mitchell Private Wealth have succeeded in a multi-jurisdictional case which endorses the importance of children's voices being heard in court cases.

Partner Zoe Round and Solicitor James Henshall successfully represented a mother seeking to challenge the decision of the Central Family Court which had ruled that her two youngest children, aged 14 and 11, should remain living with their father despite them wishing to live with her.

There were a number of applications in England, North Carolina and California. The case was ultimately decided after the children were given permission to dispense with their guardian, leaving them free to make a successful application to live with the mother.

It was clear to our solicitors that the children’s guardian was repeatedly ignoring the wishes of the children, and was not speaking to them at all before giving its recommendation to the court.  Yet the children were of an age deemed to be mature enough to have their voices taken into account.

Only when an order was made by the High Court, on the mother’s application, directing that the guardian must speak to the children in the presence of their solicitor, did that solicitor recognise that the children’s voices had not been properly heard. The children were then able to instruct their solicitor to apply to set aside the return order made against the mother. The mother’s aim - to let the children have a voice – was successful due to her tenacity and the skill of her lawyers.

The case was singled out for reporting because it marked progress on the setting aside of return orders.   It effectively confirmed that a High Court judge has the power to set aside a return order made under the inherent jurisdiction by another High Court judge - even where no error on his or her part was alleged. While that was not the main focal point of the case, Irwin Mitchell Private Wealth has once again been at the forefront of an important clarification of the law in this sector.

Zoe Round, the partner and family law specialist at Irwin Mitchell Private Wealth who led the team said: “We are delighted that our client’s children had their wishes heard and will be allowed to stay with their mother. Throughout the case the children were considered to be ‘Gillick competent’, i.e. sufficiently mature enough to give legal instructions themselves, which made it all the more difficult when their wishes were not taken into account - to their and their mother’s considerable distress.”

The Gillick competency test says the child must “reach a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”

Zoe continues: “Our client was subject to a return order and it was essential that this be set-aside. The case has helped to clarify the powers available to the High Court in these circumstances.

“Children should not be coerced nor have their wishes ignored by adults in the courts if they are deemed mature enough to express their own opinion. We’re very lucky that we were able to avoid such a scenario happening in this case, and we can only hope that this will lead the way in determining whether a child’s express wish is being properly conveyed.

“It’s always a sad event when a family unit breaks up, but the best interests of the children are front and centre for every judge in this situation. Trying to negatively sway the judge into believing a false reality is something every lawyer should be actively guarding against, as it risks the tearing apart of previously amicable family relations.” 

Published: 22 March 2018

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