F (A Child)

Under Article 13 of the Hague Convention of 1980, a child’s objection opens a discretion to refuse summary return once the age-and-maturity threshold is met. It does not impose a separate exceptionality test, although the Convention’s anti-abduction policy receives great weight. The court must distinguish short-term welfare relevant to immediate return from long-term welfare, which requires a fuller inquiry. An appellate court should not substitute its assessment of weight where the first-instance judge considered the relevant factors and explained the decision clearly. In cases governed by the Brussels II Revised Regulation, the Article 11(6)–(8) process may secure enforcement of a later return order. The judgment also gives obiter guidance on expert evidence and Article 15 declarations.

The Polish father sought the summary return of his nine-year-old son from Wales under the Hague Convention of 1980 and the Brussels II Revised Regulation. Holman J heard and rejected the mother’s challenge based on the father’s alleged failure to exercise rights of custody. The remaining issue was the child’s objection to return under Article 13. Holman J accepted that the child objected and had sufficient age and maturity for his views to be considered, but exercised the discretion against immediate return because of the child’s settled life in Wales and the damaging effect of an abrupt move. The father sought permission to appeal, arguing that insufficient weight had been given to his Polish connections and the pending Polish proceedings.

Disposition. Thorpe LJ gave the reasons, and Wilson and Elias LJJ agreed. The judgment states that permission should be granted and the resulting appeal dismissed. The supplied transcript nevertheless ends with the operative line Application refused.

1. The child-objection provision in Article 13 of the Hague Convention of 1980 opens a discretion whether to order summary return once the child objects and has attained the required age and degree of maturity. It does not create a super-added test of exceptionality. The policy of deterring abduction and securing decisions in the state of habitual residence must nevertheless receive very great weight.
2. The relevant welfare assessment concerns whether immediate return is appropriate. It is not a determination of the child’s long-term best interests. A possible longer-term return may require a planned and orderly process after a fuller welfare inquiry in Poland or another competent court.
3. Holman J had considered the relevant matters, including the child’s views, settled schooling and family circumstances, the impact of abrupt return, and Convention policy. The Court of Appeal would not substitute its own view of the weight to be given to those matters where the first-instance reasoning was clear.
4. The observations on the Article 11(6)–(8) process under the Brussels II Revised Regulation were obiter. A non-return order triggers transmission to the habitual-residence court, and a later return order may be automatically enforceable in member states. In a jurisdiction with a slow appellate process, pursuing that mechanism may be strategically preferable to an appeal.
5. Thorpe LJ also gave obiter guidance on determining Article 3 custody rights. Competing expert opinions and single joint experts may both prove unreliable. Article 15 declarations, liaison-judge assistance and the European judicial network may offer practical alternatives. A determination under the requesting state’s domestic law is not legally determinative because the issue ultimately falls to be decided under the autonomous law of the Convention.

1. Court of Appeal (Civil Division) — In [2009] EWCA Civ 416, Thorpe, Wilson and Elias LJJ dismissed the resulting appeal after considering permission.
2. Principal Registry, Family Division — Holman J made an order on 5 February 2009 refusing to order the child’s summary return to Poland.