M (A Child)

Under Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction 1980, a child’s objection to return is distinct from a preference to remain with the abducting parent. The court must consider whether the child understands what return would involve, including whether the parent would accompany the child. A distressed expression of preference cannot be converted into a Convention objection where that understanding is absent. If an interview fails to establish whether the child objects, the court should not order summary return merely because the defence has not been proved. It must ensure that the child has an opportunity to be heard and, where necessary, remit the matter for rehearing. Wrongful retention remains governed by the law of the child’s habitual residence, and an application to regularise the position does not cure unlawfulness.

The mother sought the summary return of her 14-year-old son, K, to Hungary under the Hague Convention on the Civil Aspects of International Child Abduction 1980 and Brussels II. The High Court found that the mother had not consented to the move, that the initial temporary removal was lawful under Hungarian law, but that the later retention became wrongful when the father decided to remain permanently in England. It also found that K objected to return and declined to order his summary return: [2014] EWHC 2189 (Fam.).

The mother appealed. The father sought permission to cross-appeal the finding of wrongful retention. The central issues were whether K had established an Article 13 objection to returning to Hungary and, if so, whether the court should exercise its discretion against summary return.

1. Disposition. The mother’s appeal was allowed. Permission for the father’s cross-appeal was refused. The matter was remitted to a Family Division judge for urgent directions and rehearing.
2. Wrongful retention. Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 links wrongful retention to a breach of custody rights under the law of the child’s state of habitual residence. Unchallenged Hungarian law established that the retention became unlawful when the father decided that the family would remain permanently in England. His application to the Hungarian courts to regularise the position did not preserve the legality of the retention.
3. Child’s objection. The Article 13 gateway requires an objection to return to the country of habitual residence, rather than merely a preference to remain with the abducting parent. Although K was sufficiently mature, the evidence did not establish that he understood whether a return to Hungary would involve separation from his father. His distress and preference to remain in England therefore could not properly be translated into an Article 13 objection. The airport incident was equally consistent with fear of immediate separation from his father. The issue was not simply unproved; the necessary answer remained unavailable.
4. Further procedure. Where an Article 13 objection is properly raised, the court must ascertain the child’s views and comply with Article 11(2) of Brussels II Revised by ensuring an opportunity to be heard. The court should not make an immediate return order without knowing the child’s views on return. If the gateway is established, the subsequent discretion is informed by the nature and strength of the objections, their authenticity, possible parental influence, welfare considerations, Convention considerations and the child’s age, as explained in Re M (Abduction: Zimbabwe) [2007] UKHL 55. That discretion did not arise on the evidence before the Court of Appeal.

McCombe LJ agreed, emphasising that the attempt to ascertain K’s views had failed rather than merely failed to prove an objection. Arden LJ agreed and added that, if EU law applied, Article 24 of the Charter strongly endorsed the approach taken.

• Court of Appeal (Civil Division). In [2014] EWCA Civ 1519, the mother’s appeal was allowed and the matter was remitted to the Family Division for urgent directions and rehearing. Permission for the father’s cross-appeal was refused.
• High Court (Family Division). Mrs Justice Roberts, in [2014] EWHC 2189 (Fam.), found a wrongful retention and held that K objected to return under Article 13, but declined to order summary return.