S (A Child) (Abduction: Hearing the Child)

When determining a child-abduction application under the High Court’s inherent jurisdiction, the court must consider whether and how the child should be heard. This obligation forms part of both the welfare evaluation and the child’s effective access to justice.

Hearing the child is distinct from deciding whether the child’s views are relevant, what weight they should receive or whether they should determine the outcome. Age, understanding, delay and the possible harm caused by involvement in parental litigation bear upon the appropriate procedure. Age alone does not determine capacity.

In non-Convention proceedings, welfare remains paramount. Hague Convention and European return policies must not displace an individual assessment of welfare, including the child’s wishes and feelings where appropriate.

A seven-year-old girl had lived in Russia with her Russian parents. Her mother brought her to England and remained there with a new partner and a new baby. The father applied under the High Court’s inherent jurisdiction for the child’s summary return to Russia, where residence proceedings were already pending.

Hogg J ordered the child’s return without any court having considered whether or how her wishes and feelings should be ascertained. The mother appealed. The central issue was whether a child concerned in a non-Hague abduction application under the inherent jurisdiction must be afforded an opportunity to be heard, and whether the omission required the return order to be set aside.

1. Appeal allowed. The return order was set aside and the father’s application remitted for directions and rehearing before a different Family Division judge.

2. Proceedings concerning a child’s welfare are governed by the fundamental principle that the child must have effective access to justice. There is no general rule that every child must be joined or legally represented. The court must balance appropriate procedural protection against any harm caused by involving the child in adversarial parental proceedings.

3. The High Court, when exercising its inherent jurisdiction over an abduction application, is obliged in principle to consider whether and how the child should be heard. The child’s voice is integral to the welfare evaluation and to effective access to justice. The parents cannot be assumed to provide an adequate or independent means of conveying it.

4. The obligation to consider hearing the child is distinct from the relevance and weight of anything the child may say. Age, understanding, delay and the adverse effects of participation are matters for the case-specific procedural and welfare assessment. They do not negate the underlying principle. Where necessary, early directions should determine how the child’s views will be obtained.

5. The Hague Convention and European policies favouring prompt return must not be imported into non-Convention inherent-jurisdiction proceedings to the detriment of the child’s welfare, which is paramount. The court must focus on the individual child. The available options require a balance-sheet evaluation of their respective welfare benefits and detriments, including the child’s wishes and feelings.

6. No court had considered whether the seven-year-old child was of sufficient age and understanding to be heard or what mechanism should be used. Age alone did not establish that she lacked an autonomous perspective. Her previous expression of views and the possibility of separation from important family members established at least a prima facie case for consideration of whether and how she should be heard.

7. The missing welfare element could not be discounted because the father otherwise had a powerful case. It might significantly alter the court’s perception of welfare. The decision therefore had to be reconsidered after the required process had been undertaken.

1. Court of Appeal (Civil Division): By [2014] EWCA Civ 1557, allowed the mother’s appeal, set aside the summary return order and remitted the application for rehearing before a different Family Division judge.
2. High Court, Family Division: Hogg J ordered the child’s summary return to Russia under the inherent jurisdiction. No neutral citation is stated.