M (A Child)

In Hague Convention return proceedings, a child’s objections require a three-stage inquiry: whether the child objects to return, whether age and maturity make it appropriate to take account of those objections, and whether discretion should favour retention or return. The court must balance the objections against Convention policy, comity and general welfare. Strong, reality-based fears of separation from a primary carer following credible police and criminal incidents may make a case exceptional, even where the Article 13(b) grave-risk defence is not established and protective undertakings are offered. Oral evidence remains rare in summary proceedings, but may be required where it could realistically determine an embryonic defence.

The mother appealed from an order of Mr Justice Singer in the Family Division requiring the return of her eight-year-old daughter to Serbia under the Child Abduction and Custody Act 1985 and the Hague Convention. She relied on the Article 13(b) grave-risk defence and on the child’s objections to return.

Singer J concluded that the disputed allegations were matters for the Serbian authorities and ordered return on protective undertakings. He did not address the child’s objections defence. The central issues before the Court of Appeal were whether oral evidence was required, whether the child’s objections were established and sufficiently mature, and whether the discretion under Article 13 should favour retention or return.

Disposition. Sir Mark Potter P gave the leading judgment, with Lord Justice Rix and Lord Justice Wilson agreeing. Permission to appeal was granted and the appeal was allowed.

1. Oral evidence. Hague Convention proceedings are summary and are ordinarily decided on affidavits or statements. Oral evidence remains rare. The judge nevertheless has discretion to require it where there is a realistic possibility that it will determine whether a defence, embryonic on the written material, is established. The approach stated in Re W (Abduction: Domestic Violence) [2004] EWCA (Civ) 1366 [2005] 1 FLR 727 was applied. Singer J was entitled to refuse oral evidence.
2. Child’s objections. The court applied the established approach in S v S (Child Abduction) (Child’s Views) [1992] 2 FLR 492, Re A (Abduction: Custody Rights) [1992] FAM 106 [1992] 2 FLR 14, Zaffino v Zaffino (Abduction: Children’s views) [2006] 1 FLR 410 and Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192. The inquiry asks whether the child objects to return, whether age and maturity make it appropriate to take account of the objections, and whether discretion should favour retention or return. Relevant matters include the child’s perspective, whether the reasons are rooted in reality, undue influence, and whether the objections would be mollified on return.
3. Application. M was an intelligent and mature eight-year-old whose objections were clear and strong. They were based not merely on a wish to remain with her mother, but on her own experience of police involvement, apparent attempts to incriminate the mother with drugs, and the resulting fear that the mother would be arrested and M separated from her. It was unnecessary to determine who had arranged the incidents. Protective undertakings could not adequately address M’s continuing fear. Although comity and respect for the Serbian proceedings carried substantial weight, the welfare considerations were decisive. This was an exceptional case in which return should be refused.
4. Article 13(b). The court did not need to determine the grave-risk defence. It accepted that Article 13(b) involves a higher threshold than the welfare assessment undertaken after a child’s objections have been established. Singer J’s conclusion that the Article 13(b) defence was not made out was not shown to be wrong, but his failure to address the child’s objections was material.

• Court of Appeal (Civil Division): granted permission and allowed the appeal, holding that M’s objections justified refusal of immediate return: [2007] EWCA Civ 260.
• Family Division, High Court: Mr Justice Singer ordered M’s return to Serbia on 18 January 2007, following an oral judgment delivered on 16 January 2007. He rejected the Article 13(b) defence but failed to address the child’s objections defence.