B (A Child)
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
- LADY JUSTICE BLACK
- LORD JUSTICE UNDERHILL
Areas of Law
- Family Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
This case is an appeal by a child, L, against an order made by Judge Tyzack QC. The order involved L's attendance at court, retention of his passport, and the provision of electronic communications, in relation to securing the return of an abducted child, B. The appeal, heard on 6 May 2014, challenged the validity of compelling a minor without parental responsibility to take such steps. The court held that the order to retain L's passport was impermissible, as was the attachment of a penal notice to the order. The need for familial coercion was deemed beyond the court’s power, highlighting the lawful limitations on such judicial actions.
Judgment
Sir James Munby, President of the Family Division :
This is an appeal by a child against an order made by His Honour Judge Tyzack QC, sitting as a judge of the High Court in the Exeter District Registry on 28 March 2014. It raises what are properly described as issues of general public importance in respect of two matters: first, the powers of the court to compel third parties without parental responsibility (or any other form of power or control over the child) to take steps to secure the return of an abducted child; and, second, the role of non-subject children in such proceedings, the powers of the court in relation to them, and the basis on which orders can properly be made against them having regard to Article 3.1 of the United Nations Convention on the Rights of the Child and Article 8 of the European Convention.
The background
The background facts can be very shortly summarised. Judge Tyzack was concerned with a ward of court, a nine year old girl called B, who had been abducted by her mother and removed from the jurisdiction in order to avoid the consequences of orders previously made by the court. In the course of proceedings begun by B’s father, it became appropriate for Judge Tyzack to enlist the assistance of the mother’s wider family in locating B and her mother and ensuring B’s return to the jurisdiction.
On 27 February 2014 Judge Tyzack made an order, endorsed with a penal notice, which, so far as material, ordered the maternal grandparents (Mr and Mrs S) and the mother’s partner to provide certain information and to lodge their passports with the court, and ordered B’s elder half-brother, L, born in May 1997 and therefore not yet 17 years old, to provide certain information, to lodge his passport with the court and to attend court on 28 March 2014.
The hearing before Judge Tyzack
On 28 March 2014, L attended court. He was represented by experienced family solicitors. In the position statement filed on his behalf, his solicitors said:
“The court is reminded of the guidelines issued by the Family Justice Council in 2011 concerning children giving evidence in family proceedings. In deciding whether a child should give evidence, the court’s principal objective should be achieving a fair trial. With that objective in mind the court should carry out a balancing exercise between, on the one part any possible advantages of the child’s evidence and secondly any possible damage to the child’s welfare of giving the evidence itself.”