H (A Child), Re

Where a child objects to return under Article 13(c) of the 1980 Hague Abduction Convention, and has sufficient age and maturity for the views to be taken into account, the court must decide whether to order return despite the exception. That decision requires a proper balance between the Convention’s principles and objectives and the circumstances of the case. The child’s views may be determinative in an appropriate case. Objection to return to the state and objection to returning to the left-behind parent should be distinguished, although they may be inseparably connected. An appellate court should not interfere with the resulting discretion where the first-instance judge directed himself properly and reached a conclusion open on the evidence.

The father sought the summary return of C, who had been removed clandestinely by his mother from Florida to this jurisdiction during impending proceedings in the United States. The father invoked the 1980 Hague Abduction Convention. The mother’s principal defence relied on C’s objections under Article 13(c).

HHJ Clifford Bellamy found that C genuinely, rationally and reasonably objected to returning to the United States, and that he had attained an age and maturity at which his views should be taken into account. He refused to order return. The father sought permission to appeal, challenging the assessment of C’s objection, the mother’s refusal to return, and the exercise of discretion.

1. Application refused. Thorpe LJ delivered the judgment, with Lloyd-Jones LJ and Warren J agreeing.
2. Once the Article 13(c) objection exception under the 1980 Hague Abduction Convention is established, the court must complete the task by deciding whether to exercise its discretion to order return despite the presumption in favour of summary return under Art 12. The court must balance the Convention’s principles and objectives against the circumstances of the case.
3. The first-instance judge was entitled to find that C genuinely and strongly objected to return and had the necessary age and maturity. In an appropriate case, the child’s views may be determinative.
4. The distinction between objection to return to the United States and objection to returning to the father’s care should be maintained. On the facts, however, the two considerations were inextricably linked. C’s objections also included his lack of friends in Florida and preference for the Welsh school curriculum.
5. The mother’s stated unwillingness to return to Florida was a relatively rare circumstance. The judge was required to recognise it and ensure that the court was not being manipulated. He had properly done so.
6. The judge’s reference to welfare did not reverse the applicable test. Although the wording was individual, it was favourable to the father’s position and did not undermine the judge’s otherwise proper self-direction.
7. The Court of Appeal would not interfere with the discretionary conclusion because the judge had directed himself properly, made findings open to him on the evidence, and reached a conclusion with which appellate intervention was unwarranted.

• Principal Registry of the Family Division: HHJ Clifford Bellamy found the Article 13(c) exception established and refused to order C’s summary return.
• Court of Appeal (Civil Division): The application for permission to appeal was refused. [2013] EWCA Civ 205