D (Children), Re

Article 13 of the 1980 Hague Abduction Convention involves two stages. The court must first determine whether the child objects to return and has sufficient age and maturity for the objection to be considered. A positive finding opens the discretion to refuse return; it does not determine the outcome.

When exercising that discretion, the court must separately assess each practical form of return, including return in the care of different parents. The reasons must be based on accurate facts and must not assume future contact arrangements without adequate foundation. Appellate intervention is justified where factual misunderstandings or flawed analysis have tainted the discretionary decision.

A French father sought the return of Luca and Leo under the 1980 Hague Abduction Convention after their mother wrongfully retained them in England following an agreed holiday. The mother relied on Article 13, contending that Luca objected to returning and was sufficiently mature for his views to be considered.

Theis J accepted that Luca had made out the Article 13 exception and refused to order return. The father appealed, arguing that the judge’s discretionary balance was flawed, particularly because it rejected return to his care without separately evaluating return in the mother’s care and relied on inaccurate assumptions about schooling, care and contact. The central issue was whether that exercise of discretion could stand.

1. Appeal allowed. The finding that Luca objected to return and had sufficient maturity was not challenged. Under Article 13 of the 1980 Hague Abduction Convention, that finding only opens the discretion whether to order return; it does not require refusal. The court must first determine the mature objection and then exercise the resulting discretion.

2. The discretionary exercise was materially flawed. The evidence and the CAFCASS report did not sufficiently distinguish the possible implementations of a return order. The father’s primary case was return to his care, while his secondary case was return to France in the mother’s care. Once the judge rejected the primary case, she was required to evaluate the secondary case separately. Her reasons principally addressed the difficulties of return to the father’s care and did not adequately explain rejection of return with the mother.

3. The judge’s balance was also affected by factual misunderstandings. These included insufficient recognition that the father had been the children’s primary carer since August 2009, confusion between the school at which Luca had suffered bullying and his later French school, and unsupported assumptions about therapy and the consequences of return.

4. Contact in France was an important consideration. The judge should not have assumed that such contact would be agreed when the mother later refused staying contact in France. Without an agreed or secured arrangement, the father faced the practical burden of a further application under the Children Act 1989. The court concluded that the principled outcome was return of both children in the mother’s care, with protective measures or undertakings securing a smooth transfer and an opportunity for her to present her case to the relevant French court.

5. Black LJ agreed with Thorpe LJ’s reasons and added that the rapidly changing evidence had made it especially important to keep the alternative return arrangements distinct.

• Court of Appeal (Civil Division): Appeal allowed. The court concluded that the discretionary refusal of return was tainted by factual misunderstandings and failure to assess the mother-care alternative separately.
• Principal Registry of the Family Division: Theis J accepted Luca’s Article 13 objection and maturity but refused the father’s return application.