K (A Child) (Hague Convention: Child's Objections)

Under Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction 1980, once a child’s objection and sufficient age and maturity are established, the court must weigh all relevant circumstances. Settlement in the requested state is relevant even before 12 months have elapsed. The Convention’s prompt-return policy carries substantial weight, but is not overriding. A child’s views may be determinative where they are clear, strong, authentic, rational, borne out of experience and consistent with welfare. An appellate court should be slow to interfere with that fact-sensitive discretion, particularly in summary proceedings involving oral evidence, where the first-instance judgments read as a whole disclose adequate reasons.

A, nearly 11, had lived in Lithuania until she travelled to England with her mother, with her father’s agreement, for a temporary visit. They remained in England beyond the expected return date. The father applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for A’s summary return. His Honour Judge Bellamy, sitting as a High Court Judge, dismissed the application, accepting that A objected to returning and had sufficient age and maturity for her views to be considered under Article 13. The father appealed, alleging inadequate reasons and an improper reliance on A’s settlement in England before the expiry of 12 months. The central issue was whether the judge had lawfully and adequately exercised the Article 13 discretion.

1. Disposition. Black LJ, with whom Vos LJ and Moore-Bick LJ agreed, granted permission to appeal but dismissed the appeal.
2. Article 13 discretion. Once the judge accepted that A objected to returning to Lithuania and had attained sufficient age and maturity, the issue was discretionary. The guidance in Re M (Abduction: Zimbabwe) [2008] I FLR 251 required all the circumstances to be considered. A child’s views are not always determinative or presumptively so, but there may be cases in which they are determinative.
3. Settlement and Convention policy. The father abandoned the argument that settlement before 12 months had to be disregarded. Settlement is a relevant circumstance even where the period in Article 12 has not elapsed. The Convention’s return policy and welfare considerations were both relevant, but neither was overriding. Their weight was for the judge to determine on the particular facts.
4. Application to A. The judge was entitled to regard A’s objections as clear, strong, authentic, rational and borne out of her experience. Relevant factors included her fear of her father, the effect of his conduct, her unhappiness at school in Lithuania, her positive integration into school in England, her close relationship with her sister, and the possibility that her account of family life in Lithuania contained substantial truth.
5. Reasons and appellate review. The Court would have preferred the reasoning to be expressed more clearly. However, the first judgment and supplemental judgment had to be read together. They disclosed the factors taken into account and provided an adequate foundation for the decision. The proceedings were summary, oral evidence was limited by agreement, and no adjournment for further investigation had been sought. The judge was therefore entitled to decline to order A’s summary return.

• Court of Appeal (Civil Division) — Permission to appeal granted; appeal dismissed. [2014] EWCA Civ 1364
• Principal Registry of the Family Division — His Honour Judge Bellamy, sitting as a High Court Judge, dismissed the father’s application for A’s summary return to Lithuania on 6 February 2014.