J (Children); Re

In an application for permission to appeal in a Hague child-return case, a possible alternative view of the evidence is insufficient. The applicant must identify an error of principle or a sufficiently substantial flaw in the first-instance decision. This applies particularly where the judge heard the parties and reached a finely balanced assessment of an Article 13 defence. Past violence, breached undertakings and parental conflict may be relevant to grave risk or an intolerable situation, but the assessment remains fact-sensitive. A child’s wish to remain with a parent does not necessarily amount to an objection to return in that parent’s care. Sympathy for a party cannot displace the applicable permission threshold.

A Croatian father sought the return of two boys after their mother brought them to England. An earlier return order had been made by consent after the mother’s first removal, but the father breached undertakings intended to protect her. Croatian proceedings later placed the boys in the mother’s care, and she returned to England again.

Hughes J ordered return subject to fresh undertakings. He rejected the mother’s Article 13 arguments based on grave risk and an intolerable situation, and found the evidence insufficient to establish a separate defence based on the children’s wishes. The mother applied for permission to appeal, challenging the assessment of the father’s conduct and the summary of the older child’s wishes. The central issue was whether those criticisms disclosed an error of principle or a sufficiently substantial basis for a full appeal.

Disposition. Lord Justice Thorpe refused permission to appeal. The application was dismissed and the order for the children’s return remained in force.

1. Article 13 assessment. The judge below had to assess whether return created a grave risk of psychological harm or an intolerable situation. The assessment was fact-sensitive. Relevant matters included the father’s history of violence and breached undertakings, the risk of renewed parental conflict, evidence of improved circumstances in Croatia, and the ability of the Croatian family justice system to deal with the situation.
2. Appellate intervention. Hughes J had unusually heard oral evidence from the parties because of the committal application. Although his conclusion was finely balanced, he was entitled to prefer the evidence of a neutral professional observer and to conclude that the father’s conduct was not sufficiently severe to establish the defence. The Court of Appeal found no error of principle. Permission could not be granted merely because another judge might have reached a different conclusion.
3. Children’s wishes. The older child’s report contained worrying allegations and showed a strong wish to remain with his mother. Nevertheless, the judge was entitled to conclude that the dominant feature was the wish to live with her, rather than a real objection to return to Croatia in her care. The omission of the words indicating that the father had asked whether the child wanted to live with him in Croatia did not make the summary sufficiently flawed to justify permission. The younger child had not wished to be drawn into the dispute.
4. Committal and delay. The court recognised a mismatch between the judge’s assessment of the father’s conduct for Article 13 purposes and the greater severity attributed to his breaches in the committal context. The difference was understandable, although a separate later hearing on committal might have been preferable. The delay before the return hearing was also a serious departure from the jurisdiction’s six-week commitment, but neither matter established grounds for permission.

• Court of Appeal (Civil Division): Lord Justice Thorpe refused the mother’s application for permission to appeal and ordered that the application be dismissed.
• Family Division (Hughes J): ordered the children’s return to Croatia subject to undertakings, rejected the Article 13 and wishes-based defences, and dealt separately with the father’s contempt.