In the matter of F (A Child)

In proceedings for the summary return of a child, article 11(2) of the Brussels II Revised Regulation imposes an obligation on the court to give the child an opportunity to be heard, unless this is inappropriate having regard to the child’s age or degree of maturity. The obligation applies independently of any pleaded defence based on the child’s objections. It cannot be displaced by the parties’ litigation strategy.

The court should consider at the first directions hearing how and when the child will be heard. The process must be completed consistently with the obligation to determine return proceedings within six weeks. A failure to address the child’s wishes and feelings may constitute a fundamental procedural deficiency requiring the decision to be set aside and the case remitted.

A seven-year-old child was wrongfully retained in England after travelling from Spain for Christmas. The father sought her return under the Hague Convention of 1980 and the Brussels II Revised Regulation. The mother relied on acquiescence under article 13(a) and grave risk or intolerability under article 13(b).

Macur J rejected both defences and ordered return once the father had obtained protective measures in Spain. Although the mother’s pleaded defence had asserted the child’s right to be heard under article 11(2), neither the parties nor the judges addressed that issue. The mother applied out of time for permission to appeal. The Court of Appeal treated the hearing as the appeal and considered whether the failure to hear the child required the return decision to be set aside.

1. Appeal allowed unanimously and matter remitted. The Court extended time, granted permission to appeal and allowed the appeal. The failure to give the child an opportunity to be heard was a fundamental deficiency that could not be disregarded or cured by the material later placed before the Court of Appeal. The matter was remitted to the Family Division for further consideration.

2. Article 11(2) of the Brussels II Revised Regulation obliged the court to hear the child unless that course was inappropriate because of her age or understanding. In this context, hearing the child ordinarily meant obtaining her wishes and feelings. The obligation arose independently of a defence based on the child’s objections and was unaffected by the parties’ litigation strategy. The child’s age did not make this a merely borderline discretionary matter.

3. An affidavit recounting an interview conducted for a proposed intervention did not discharge the article 11(2) obligation. A specialist CAFCASS officer should meet the child, discuss the future with her and report her wishes and feelings to the court. The practical arrangements following that report were to be settled after further submissions.

4. The obligation to hear the child must operate consistently with article 11’s requirement that the proceedings be concluded within six weeks. The court should therefore consider how and when the child will be heard at the first directions hearing and at every later directions hearing. Thorpe LJ drew support from D (a child) [2006] UKHL 51. Munby J added that advocates should remind the judge orally of the imperative obligation.

5. The challenge to the rejection of acquiescence failed. Macur J had directed herself properly and made sufficient factual findings. She was entitled to accept the father’s explanation for the delay and to conclude that he had not acquiesced in the child remaining in the United Kingdom.

6. Thorpe LJ also gave procedural guidance. Appellate courts should scrutinise attempts to advance cases which specialist representatives did not run below, because a deliberate forensic decision may explain the omission. In urgent child-return proceedings, an unsuccessful application to the trial judge for permission to appeal should normally be followed by a seven-day period for filing the notice of appeal, rather than the ordinary 21 days.

1. Court of Appeal (Civil Division): Time was extended, permission to appeal was granted and the appeal was allowed. The return decision was set aside because the child had not been given an opportunity to be heard under article 11(2) of the Brussels II Revised Regulation. The matter was remitted to the Family Division.

2. High Court, Family Division: Macur J rejected the mother’s defences of acquiescence and grave risk or intolerability. She ordered the child’s return after the father obtained a protective mirror order in Spain. The judgment did not address the pleaded request that the child be heard.