Case Of N v J: Technical Challenge Relating To The Setting Aside Of Return Orders

Family lawyers at Irwin Mitchell Private Wealth have succeeded in a multi-jurisdictional case which is an important endorsement 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 decided 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 and they successfully applied for permission to live with the mother.

It was clear to Irwin Mitchell Private Wealth solicitors acting for the mother that the children’s guardian was repeatedly ignoring the wishes of the children, who were deemed to be mature enough to have their voices taken into account, and was not speaking to them at all before giving their recommendation to the court.

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 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 case was reported because it marked progress on the setting aside of return orders, where it was 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.

Expert Opinion

“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.

“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 hope that similar situations will follow our path 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, at the risk of tearing apart formerly amicable family relations.” Zoe Round - Partner & Chartered Legal Executive Advocate