A (Children), Re

In a Convention return application, a child’s objection is not rendered unreal merely because it arises from a single past event or because no repetition has occurred. The court should assess the objection by considering the child’s short-, medium- and long-term interests, whether the reasons are rooted in reality, parental influence, and whether the objection would change on return. The objection may concern return to the country rather than simply living with a parent. In an exceptional family case, the children should not be treated as separate entities in a predetermined order. Return of a younger child alone may create a grave risk of psychological harm or an intolerable situation under Article 13(b). An appellate court should not interfere with a carefully reasoned discretionary assessment of relevant factors.

The father appealed against the refusal of his application for the return of his three children to Norway. The parents had separated after an alleged assault in 2008 which had deeply affected the two older boys. The mother and children later moved to this jurisdiction before the Norwegian proceedings were complete.

Miss P Scriven QC, sitting in the Family Division, refused the return application. She found that the boys objected to return and exercised the discretion not to return them. She also found that Article 13(b) applied to the youngest child because returning her without her mother and brothers would create an intolerable situation. The appeal challenged the threshold for children’s objections, the nature and reality of those objections, the treatment of the youngest child, and the discretionary decision.

1. Appeal dismissed. Lord Justice Thorpe gave the reasons for decision. Lord Justice Kitchin and Sir David Keene agreed.
2. The judge below had not misdirected herself by citing the passage in Re W [2010] 2 FLR 1165 which described the threshold for a child’s objection as fairly low. She had reviewed the wider authorities, including Re M [2008] AC 1288 and L v H [2010] 1 FLR 1229, and had applied the four-stage framework adopted by Sir Mark Potter P. The relevant matters were the child’s short-, medium- and long-term interests, whether the reasons for objection were rooted in reality, the effect of undue parental influence, and whether the objection would be modified on return.
3. The boys’ objections were capable of being rooted in reality even though they arose from one traumatic incident and there had been no repetition. The availability of protective measures did not displace that conclusion. The incident had profoundly damaged the parent-child relationship.
4. The evidence showed that the objection could be directed to return to Norway, rather than merely to living with the father. It was therefore wrong to treat the objection as necessarily confined to antipathy towards the parent.
5. The family could not be considered artificially as separate individuals in a predetermined order. If the boys were not returned, it was reasonably foreseeable that the mother would not return without them. Returning the youngest child alone would create a grave risk of psychological harm and place her in an intolerable situation, so the Article 13(b) defence was established.
6. The judge’s exercise of discretion was unimpeachable. She identified the relevant advantages and disadvantages, considered relevant factors, and assigned them appropriate weight on the evidence. There was no basis for appellate interference.

1. Court of Appeal (Civil Division) — On 23 July 2013, the court dismissed the father’s appeal. [2013] EWCA Civ 1256.
2. Principal Registry, Family Division — Miss P Scriven QC delivered a reserved judgment on 14 March 2013 refusing the father’s application for return.