Vigreux v Michel & Anor

In an application under the Hague Convention, establishing a child’s Article 13 objection does not give the objection automatic priority. Return remains the norm and refusal is exceptional. The court must balance the nature and strength of the objection against Convention policy, comity, respect for the court of habitual residence and relevant welfare considerations. Peripheral matters such as schooling and disruption should not outweigh that policy where active welfare proceedings remain in the habitual-residence state. An abducting parent cannot rely on refusing to participate in those proceedings, or on a resulting fear of unfairness, to strengthen the defence. Brussels II Revised reinforces the return policy and imposes strict time limits, but does not abolish the discretion.

The parties were French nationals who had an unmarried relationship and a son. French orders provided for joint parental responsibility and residence with the mother. In August 2005 the father and son wrongfully removed the child to England. The mother commenced proceedings under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention.

McFarlane J found that the child objected to return and had sufficient age and maturity for his views to be considered. He dismissed the return application after weighing the objection, welfare considerations, schooling and disruption against Convention policy. The mother appealed, arguing that the judge had failed to give sufficient weight to the active French proceedings and to Brussels II Revised. The central issue was whether the discretion not to return had been wrongly exercised.

Thorpe LJ and Wall LJ agreed that the appeal should be allowed and the refusal of return set aside.

1. Article 13 discretion. The child’s objection was established and was strong, but it did not determine the result. Following Re S [1993] Fam 242 and Zaffino [2006] 1 FLR 410, the court had to ask what made the case exceptional and balance the nature and strength of the objection against Convention considerations, including comity and respect for the requesting state’s judicial process. General welfare considerations could be considered, but the court was not to conduct a broad welfare determination.
2. Welfare and the foreign court. The French court was actively seized of the child’s welfare and was the proper forum for the essential welfare investigations and decisions. Education and disruption were peripheral considerations and had been given excessive weight. The delay in England also breached the expedition required by Article 11(3) of Brussels II Revised and prolonged the abduction.
3. Conduct of the abducting parent. The father’s refusal to participate in the French proceedings, and the fear of an unfair process which that conduct had helped create, deserved little or no weight. The child could be represented in France and the only legitimate assumption was that the French court would exercise its powers properly and fairly.
4. Regulatory consequences. The Regulation did not silently create a rule that every child-objection defence must fail. However, Article 11(8), together with the return and enforcement machinery, reinforced the Convention’s policy where the habitual-residence court remained seized. Wall LJ added that a non-return decision in such a case should clearly explain its compatibility with the Convention, comity and the Regulation.
5. Procedural guidance. Applications should identify both the Act and the Regulation, be clearly marked, and specify the six-week hearing deadline. Judges and court administrators had to comply strictly with the obligations under Article 11(3) and Article 11(6).

• Court of Appeal (Civil Division): Allowed the mother’s appeal and set aside the refusal to return the child.
• High Court of Justice, Family Division: McFarlane J dismissed the mother’s application under the Child Abduction and Custody Act 1985, while adjourning the inherent-jurisdiction application generally.