V (a child), Re

Return proceedings under the Child Abduction and Custody Act 1985 and Brussels II carry a strong presumption that a child will be returned to the country from which the child was taken. The child’s expressed wishes and reasons may be considered where appropriate, but they are not necessarily decisive. The court of the child’s normal residence should ordinarily determine residence questions, with the foreign court assumed to act properly, fairly and promptly. An appellate court should not interfere with a discretionary return decision unless the judge erred in law or reached a decision no reasonable judge could have reached.

Mr V brought his son, M, from Hungary to England in February 2006 after the family’s separation. Coleridge J considered whether M should be returned to Hungary under the Child Abduction and Custody Act 1985 and Brussels II. Although M expressed a clear wish to remain with his father and gave reasons for that view, the judge concluded that those matters did not overcome the strong return presumption.

Mr V applied for permission to appeal, arguing that insufficient weight had been given to M’s human rights and expressing concern that the Hungarian courts might deal slowly with M’s position. The central issues were whether the first-instance decision was legally or irrationally flawed, and whether those concerns justified appellate intervention.

Neuberger LJ refused the application for permission to appeal.

1. Proceedings under the Child Abduction and Custody Act 1985 and Brussels II involve a strong presumption that a child should be returned to the country from which the child was taken. The child’s expressed wishes and reasons may be taken into account where appropriate, but they are not necessarily determinative. Coleridge J was entitled to conclude that M’s wishes did not displace the presumption.

2. The appellate court should not interfere with the first-instance decision unless the judge went wrong in law or reached a decision which no reasonable judge could have reached. The fact that earlier decisions, including Vigreux v Michel [2006] EWCA Civ 630 and Zaffino v Zaffino [2006] 1 Family Court Reports 387, had resulted in reversals did not alter that approach.

3. Brussels II was consistent with human rights. It allowed M’s views to be considered without making them decisive. The English court was not normally the court to determine whether M should remain in England; that responsibility ordinarily lay with the Hungarian courts, as the courts of the country from which he had been taken.

4. The court had to assume that the Hungarian courts would exercise their judicial powers properly and fairly and reach an appropriate welfare decision, following the guidance in Vigreux. That assumption extended to promptness. Fairness and proper judicial treatment required applications concerning M’s residence to be dealt with promptly. The court expected the Hungarian courts, like the English courts, to act promptly, since delay could undermine the basis of the convention arrangements and mutual trust between legal systems.

Order: application refused.

• Court of Appeal (Civil Division): On 2 June 2006, Neuberger LJ refused Mr V’s application for permission to appeal.
• Principal Registry of the Family Division: On 24 May 2006, Coleridge J decided that M should be returned to Hungary, holding that his wishes and reasons did not overcome the strong return presumption.