G (Children), Re

Under Article 13 of the Hague Convention of 1980, a child’s sufficiently mature objection to return establishes a discretionary exception rather than determining the application. The court must exercise its discretion, or make a proportionate judgment, while considering the Convention’s objective and the practical implementation of any return order.

Material fresh evidence may justify appellate intervention even where the first-instance exercise of discretion was legally impeccable. Particular attention is required where an articulate and determined adolescent has developed a firm refusal to comply and gives cogent reasons connected with education, security and family support.

A mother wrongfully removed two children, aged 13 and nine, from Canada to England. Their father applied for their return under the Child Abduction and Custody Act 1985, which incorporated the Hague Convention of 1980.

HHJ Barnett rejected defences based on acquiescence and grave risk of harm. He found that the children objected to returning and had sufficient maturity and understanding. Nevertheless, he exercised his discretion under Article 13 in favour of return, giving primary weight to the Convention’s objective.

The mother appealed. The central question was whether fresh evidence from the older child, including her direct representations to the Court of Appeal, justified setting aside the return order despite the soundness of the judge’s original reasoning.

1. Appeal allowed and return order set aside. The court unanimously granted permission to appeal and allowed the appeal. The first-instance judgment was legally impeccable on the evidence then available. The judge had correctly identified the children’s objections, considered whether their views were independently formed, assessed their maturity and understanding, and undertaken the discretionary or proportionate judgment required by Article 13 of the Hague Convention of 1980.

2. The word “may” in Article 13 confers a discretion once the child-objection conditions are established. A child’s wishes do not determine the application. The court must balance the established objection against the Convention’s objective and decide whether return should nevertheless be ordered.

3. The appellate court had to decide the matter in light of material fresh evidence. The older child’s position had hardened since her CAFCASS interview. She had previously said that she would comply reluctantly with a return order, but by the appeal she firmly refused to board the aircraft. Her reasoning about education, peace of mind and dependence upon extended family and friends was cogent.

4. A trial or appellate court must remain alive to the practical implementation of a return order, particularly where its subject is an articulate, naturally determined and courageous adolescent. Thorpe LJ concluded that the judge might well have refused return had he possessed the evidence available to the appellate court. Meeting the child was highly unusual in the Court of Appeal, but was justified and necessary in the circumstances.

5. Thorpe LJ also observed that the child’s voice may be received through a CAFCASS officer or, where carefully arranged and appropriate, by meeting the judge. The developing practice of judicial meetings with children deserved attention. He further regarded the dispute as suitable for mediation because a physical return would not resolve the family’s underlying problems and could expose the children to successive moves.

• Court of Appeal (Civil Division): In [2010] EWCA Civ 1232, granted permission to appeal, allowed the appeal and set aside the return order.

• High Court: HHJ Barnett ordered the children’s return to Canada under the Child Abduction and Custody Act 1985 and refused permission to appeal, while granting a short stay.