K (A Child), Re

Applications under the Hague Convention 1980 are ordinarily decided promptly on written evidence and oral submissions. Oral evidence is exceptional and should be confined to a clearly defined, disputed issue.

Acquiescence requires more than delay or poor parenting. A child’s wishes and feelings do not automatically amount to an objection to return; the objection must show sufficient strength, conviction and rationality. In European cases, return cannot be refused for grave risk unless adequate protective arrangements cannot be made. Protective undertakings should be clearly formulated, and the court should identify any further safeguards required.

The parties were Polish parents. The mother left Poland with their youngest child and settled in England. After delay, the father applied under the Hague Convention 1980 for the child’s return. The mother relied on acquiescence, grave risk of harm and the child’s objections.

Peter Jackson J refused a return order after hearing extensive oral evidence. He rejected acquiescence but accepted, narrowly, that the child objected to return and that return would create an intolerable situation. The father appealed. The central issues were whether the Article 13 defences were established and whether the case had been managed and decided consistently with the Convention framework.

1. Appeal allowed. The Court of Appeal unanimously held that the return order should have been made. Implementation and the timing of return required further careful consideration.
2. Case management. Hague applications are intended to be peremptory and ordinarily proceed on written evidence amplified by oral submissions. Oral evidence should be ordered only exceptionally, usually where a narrow and discrete issue concerning consent or acquiescence turns on a particular conversation or event. It should not be ordered before written statements have exposed the real issue. Any order should confine the evidence clearly and impose appropriate time limits. The unrestricted evidence in this case permitted a general welfare investigation to influence the decision.
3. Acquiescence. The father’s delay and conduct, although capable of being criticised as parenting, did not establish acquiescence under Article 13(a). The judge had correctly rejected that defence, having referred to Re F [2008] 2 FLR 1239.
4. Child’s objections. The obligation to hear a child under Article 11(2) of Brussels II Revised does not mean that the objection threshold is automatically crossed. A distinction must be maintained between an objection to return and wishes or feelings favouring continued residence in the temporary security created by the abducting parent. The objection must possess sufficient strength, conviction and rationality. The child’s evidence showed a preference and concern about returning to the family home, not a sufficient objection to returning to Poland.
5. Grave risk and protective arrangements. In a European abduction case, Article 11(4) of Brussels II Revised reinforces Article 13(b) of the Hague Convention 1980. Return cannot be refused unless it is established that adequate arrangements cannot be made to protect the child. The judge failed to focus on the low level of risk associated with return to the sister’s home in Poland and on the protections available through the Polish courts and undertakings. If proposed undertakings appeared minimal, he should have identified the additional safeguards required and allowed an opportunity to improve them.
6. Equality of arms. The court expressed serious general concern about an unrepresented foreign-language litigant facing specialist representation in highly technical Convention proceedings. Lord Justice Munby associated himself with the concern that such circumstances may undermine the appearance of equality of arms under Article 6 of the European Convention.

• Court of Appeal (Civil Division): Allowed the father’s appeal and made the return order which Peter Jackson J had refused.
• Principal Registry, Family Division: Peter Jackson J refused the father’s application for a return order after hearing oral evidence.