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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> QS v RS & Anor  EWHC 1443 (Fam) (16 June 2016)
Cite as:  EWHC 1443 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
(by her Children's Guardian)
Mr Andrew Bagchi QC (instructed by Lightfoot O'Brien Westcott) for the First Respondent
Mr Jeremy Ford (instructed by CAFCASS Legal) for the Second Respondent
Hearing dates: 7 June 2016
Crown Copyright ©
Mr Justice MacDonald:
"The mother will of course give careful consideration to the Guardian's report which no doubt will include a more fulsome consideration of all the evidence and circumstances of the case."
i) The report of Ms Hamade on the impact of the law of Dubai on, inter alia, the mother's ability to enter and exit unimpeded the United Arab Emirates and the procedure to be followed to enable her to do so;
ii) The report of the expert in Nepalese law on the legality of T's adoption in Nepal;
iii) The evidence on which the mother intended to rely at the final hearing;
iv) A report from T's current treating physician concerning her current physical health;
v) The evidence on which the father intended to rely at the final hearing.
i) Her mother does not live with her but means a lot to her;
ii) That she likes living with her father in Dubai, swimming, playing with her friends in Dubai and school;
iii) That her three wishes would be to have her passport, to live in Dubai forever and to visit places with her passport;
iv) That what makes her feel safe is living in Dubai and people protecting her;
v) That the big decision she would like the family court to make for her is to live in Dubai.
i) That the children's guardian expresses a decided view on the outcome in this case when his position was recorded in the Position Statement prepared on his behalf by Mr Hinchliffe as "The children's guardian takes the view from talking to T and interpreting her wishes and feelings captured in her 'How it looks to me' submission annexed as MH1 that her family life is firmly rooted in Dubai and up until now this appears to have worked for her, even in the absence of M for three years" notwithstanding that he had not seen all of the evidence directed by the order dated 5 April 2016;
ii) That the children's guardian expressed a decided view on the outcome in this case when his position is recorded in the Position Statement prepared on his behalf by Mr Hinchliffe as "The children's guardian takes the view that T has suffered enough change and suggests a formula of arrangements that add, expand and compliment the advantages that accrue to her living with F in Dubai" notwithstanding he had not seen all of the evidence directed by the order dated 5 April 2016.
i) The Children's Guardian is recorded as being "very impressed with the quality of contact" between T and her mother and as noting that it "was as though the mother and daughter had been separated for seconds, not years";
ii) At the conclusion of her contact with her mother on 20 May 2016 the Children's Guardian is recorded as again having met with T on her own and having asked her if her views had changed as a result of her spending time with her mother. T is recorded as stating that they had not and that "she wants to continue to live with F in Dubai but would like M to return to live in Dubai or visit her". T told the Children's Guardian that she did not feel able to tell her mother this.
iii) The Children's Guardian is recorded as recognising "the enormous hurt" experienced by the mother in Dubai and understands that she is scared to return but that it "may be that the advice from Diana Hamade about the legal position in Dubai will when it is available to some extent reassure M";
iv) The Position Statement records the view of the Children's Guardian that a further child arrangements order should be made providing for T to spend further time with the mother "pending the final resolution of the case".
16.25 Court's power to change children's guardian and prevent person acting as children's guardian
(1) The court may –
(a) direct that a person may not act as a children's guardian;
(b) terminate the appointment of a children's guardian;
(c) appoint a new children's guardian in substitution for an existing one.
(2) An application for an order or direction under paragraph (1) must be supported by evidence.
(3) Subject to rule 16.24(6), the court may not appoint a children's guardian under this rule unless it is satisfied that the person to be appointed complies with the conditions specified in rule 16.24(5).
i) Ensuring that the case is dealt with expeditiously and fairly;
ii) Dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
iii) Ensuring that the parties are on an equal footing;
iv) Saving expense; and
v) Allotting to the case an appropriate share of the court's resources while taking into account the need to allot resources to other cases.
"The reasoning of the Cafcass guardian, whether given orally or in writing is always open to challenge in cross-examination, which can always go to method. Added to which, of course, where the report is in writing, good practice requires the investigative and reasoning processes to be set out. Once again, the decision is for the court, which is heavily dependent upon the quality of the advice it receives."
"It was not necessary for the President, in order to dispose of the application, to attempt any comprehensive statement of the circumstances in which it might be expedient to remove a guardian ad litem, and the President wisely did not embark on that course. Neither r 4.10(9) of the Family Proceedings Rules 1991 nor the corresponding provision of the Civil Procedure Rules 1998 (r 21.7(1)) specifies any limit on the court's power to terminate the appointment of a guardian ad litem or litigation friend. The President focused on the particular situation in which the court is asked to replace a guardian ad litem because the guardian has in the conduct of litigation taken a course of action (in which we include an omission), or is about to take a course of action, which is manifestly contrary to the best interests of the child whose interests it is the guardian's duty to safeguard. If the guardian (or litigation friend) does act manifestly contrary to the child's best interests, the court will remove him even though neither his good faith nor his diligence is in issue."