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On wednesdays he goes shopping, and has buttered scones for tea

A short post about C (A Child) [2012] EWCA Civ 1144 , the child who nearly but not quite went to Canada.  (yes, the title is immensely remotely linked to the story, sorry) . Title two (which will make sense in a minute), was Dylan’s “You don’t need a weather vane to know which way the child goes”

Changes of heart seem to be becoming a bit of a theme in recent weeks, with this case and the Re LB, where the Judge changed her mind after delivering a finding of fact judgment.

This one is a private law case, and with an international (if not actually any lumberjacking) element.

A fairly easy one at first instance. Child is nearly 15, dad wants her to be returned to Canada, child wants to go, mum acquiesces, and a consent order is made. The child then decides, actually, no I don’t want to go to Canada. You can’t, as we all know, appeal a consent order, so this creates a bit of a problem. [Though see for the door being opened to appeal consent orders made on fallacious grounds]

There was also, of course, the problem that there was the distinct possibility of litigation within the Canadian jurisdiction.

But it is clear that having consented on the basis that the child wanted to go, when she decided she didn’t, it caused a problem. I like this line from the judgment, and will be stealing it  “The entire foundation of the order evaporated”

The Judge at first instance was worried, when the case came back before him, considering that he lacked jurisdiction to make an order which in terms would reverse the order already made.  As was submitted, the child’s wishes and feelings were no longer cut and dried, and although there was an argument that conducting further investigation into her wishes and feelings and the right course of action might itself compound the emotional turmoil she was in, it might not be as simple as saying that she had decided not to go.

“What are Nicole’s real wishes and feelings?  Might she not shift again?  Is she perhaps something of a weather vane in relation to her future country of choice? “

The Court of Appeal effectively decided that if father was committed to pursuing his application to have the child returned to Canada, the Court could not bar that application being heard, but judicial shoulders were leaning hard on him and the mother to engage in some mediation and thrash out the issues themselves.

The Court of Appeal do seem to be adopting this course in recent months of trying to make parents take some responsibility for the impact of litigation on their children. One might cynically suggest that the Court is passing the buck in asking parents who are in litigation to sort things out themselves, but it appears to be a phenomenon which is catching on.

MacFarlane LJ – “I would particularly endorse what my Lord has said about the need for the two parents to share the decision about Nicole rather than expect a rather blunt legal process to be deployed and come up with an answer which they as parents have responsibility for taking.  The father, in particular, would be wise to step back and look at the situation that now confronts the family with the potential for contested proceedings.  Accepting, as I do for the present, Mr Turner QC’s characterisation of Nicole as being a young girl in her mid-teens who changes her mind from time to time and accepting that that might well be the case, I suspect that now that she has made her position plain as it currently is, it is not the moment for it to be met by the robust deployment of an application pursued in legal proceedings. There is surely a need for the father to consider whether that course will do more damage than good to his relationship with Nicole.  A better course may be for the parents to agree arrangements and allow Nicole, as she develops in maturity, to make up her own mind as to where she goes and if that is to Canada no doubt the father will be very pleased to renew his relationship with her there on that voluntary basis.”

On a more self-centred topic, I’m about to hit 2,000 reads for the month of August, which is very pleasing for me, and smacks my previous best month. Thank you to all of you for reading. If you do read this blog, and find it anything other than impenetrable legal waffle, I’d be enormously grateful if you could inflict it on a couple of other people you know.

Just like the underpant-stealing gnomes from South Park, I have a three stage plan.

Stage 1 – write blog

Stage 2 ????

Stage 3 profit


[Edit  – I’ve realised that if you don’t know that three stage internet meme, you might well think I literally meant that there’s a business plan for the blog and an aspiration to profit, whereas the metaphor was intended to mean the exact opposite  – there never is a stage 2 in the gnomes plan, and nor is there in mine. I write this blog because I like writing it. I’d be lying if I didn’t say that it makes me happy to know that people are reading it]

About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

2 responses

  1. You have to feel for the poor child caught in the middle, wondering what on earth it is that she does really want. Also I note that there was a silk – maybe 2? which is possibly an indication of what was going on beneath the surface. Even an lowly junior junior such as I was could have coped with this.

    Your profit need not come directly from the blog, because there are many blogs and many books and most of us won’t pay to view. Sorry, but that’s the truth. I read it because it’s here and I like it very much, but I managed well before I knew about it!. SO… ask yourself some questions..

    Does the blog raise your profile for lectures? Make contacts you didn’t have before? Fulfill a need to write? Help you keep up to date?

    What was your motivation when you started to write this and, if you were to stop, what would you have gained that would still have value you could charge for? And what of that would remain in a year’s time? Why did you start writing this and why do you still write the blog, Sue?

    How does the blog enhance your CV?

    Somewhere in there is your way forward.

    • should have made it clearer that the stage 3 profit thing was intended to be tongue in cheek. I don’t think writing this blog, or any blog is a passport to anything more than stretching my mind and hopefully saving a few people some time in looking things up and reading the full text of stuff that I try to boil down to something shorter. I enjoy writing it, and that’s more than enough for me.

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