AJ v JJ & Ors

In proceedings for the summary return of a child, the court must make an unequivocal finding on any objection to return before deciding the legal consequence. If no objection is established, return is required under Article 12 of the 1980 Hague Abduction Convention. If an objection is established, the court must exercise the discretion under Article 13 by giving due weight to all relevant factors.

Presidential guidance on judges meeting children applies to every proceeding in which the decision will significantly affect a child’s future life. A trial judge retains broad latitude, but strong indications of an articulate adolescent’s resistance may require the court at least to consider direct engagement, particularly where enforcement could cause foreseeable distress.

Three children remained in England after holiday contact with their mother, contrary to an order of the Polish court. Their father sought summary return to Poland under the 1980 Hague Abduction Convention and Article 11 of Regulation Brussels 2 Revised. The mother relied principally on the children’s objections to return.

Roderic Wood J ordered return. His judgment expressed doubt about whether the objections were established but also stated that, if they were established, he would exercise his discretion in favour of return. The children obtained separate representation, permission to intervene and permission to appeal. The mother’s application for permission to appeal was refused.

The appeal concerned whether the judge had to determine unequivocally whether the children objected and whether he should have joined, met or otherwise engaged them directly in the process.

1. The children’s appeal was allowed unanimously and the case remitted. The trial judge’s primary task was to make a clear finding on the principal issue: whether the children objected to return. The evidence concerning their objections was neither scant nor weak. A finding that no objection was established would have ended the case under Article 12 of the 1980 Hague Abduction Convention. An exercise of the Article 13 discretion required an unequivocal finding that the objections were established. The judge’s alternative reasoning did not satisfy that requirement (per Thorpe LJ, Hallett LJ and Sir Mark Potter agreeing) (paras [29], [44]).

2. The submission that the judge should have joined the children as parties on his own motion was unsustainable. Earlier directions had expressly provided an opportunity for joinder to be considered, but the issue was not raised. It was unnecessary to rely on Rule 12 of the Family Procedure Rules 2010 (para [30]).

3. The judge nevertheless erred by failing at least to raise whether he should meet the children. The authorities, the children and family reporter’s observations, and the President’s Practice Note pointed towards direct engagement. The Practice Note applies to all proceedings in which the decision will significantly affect a child’s future life, including proceedings under international family instruments. Practitioners and judges must consider how it applies when preparing for and conducting a trial (paras [31]–[42]).

4. Whether a meeting is required remains fact-dependent, and the trial judge has broad latitude. The failure to consider a meeting would not, by itself, have justified allowing this appeal. However, return orders concerning articulate adolescents who may resist enforcement require particular care. A meeting may permit practical consequences and reassurances to be addressed and may assist the judge in assessing whether enforcement is likely to cause serious disruption or distress (paras [40]–[42]).

5. The remitted hearing was to proceed without further oral evidence and on the basis that the children’s objections were proved. The judge’s sole task was to exercise the Article 13 discretion, giving due weight to the factors already covered by the evidence. The children were to be prepared through their representatives to understand the respective functions of the English and Polish courts. If return were ordered, every effort was to be made to avoid disruption and distress in its implementation (paras [43]–[47]).

1. Court of Appeal (Civil Division): The children were granted permission to intervene and appeal. Their appeal was allowed unanimously, the return order was set aside, and the matter was remitted for an expedited exercise of discretion on the basis that their objections were proved. The mother’s application for permission to appeal was refused: [2011] EWCA Civ 1448.

2. High Court, Family Division: Roderic Wood J ordered the children’s return to Poland. He expressed doubt that their objections were established but held alternatively that he would exercise the Article 13 discretion in favour of return. No neutral citation is stated in the judgment.