B (A Child) (1980 Hague Convention Proceedings)

In a return application under the 1980 Hague Convention, a child's objection gives the court a discretion to order or refuse return once age and maturity justify taking the objection into account. Welfare is important, but it is not paramount: the return court does not determine the child's ultimate welfare, which belongs to the courts of the habitual-residence country. The court must evaluate the material factors, including the child's relationships, likely arrangements and emotional consequences, without applying a presumption in favour of a parent. A failure to compare every possible placement expressly is not decisive where the judgment shows that the alternatives and relevant attributes were considered. On the facts, anticipated distress and adjustment did not establish grave risk or an intolerable situation under Article 13(b).

A father applied under the 1980 Hague Convention for the return of his daughter to France after the mother had wrongfully removed her to England. The mother relied on the child's objections and the Article 13(b) grave-risk exception. A deputy High Court judge ordered the child's return on 2 December 2013, finding that the child objected at an age and level of maturity warranting consideration of her views but exercising her discretion in favour of return.

The child was also subject to English care proceedings, with her maternal uncle, the local authority and the child joined as parties. The mother appealed, and the uncle sought permission to raise additional arguments concerning jurisdiction under the Council Regulation (EC) No 2201/2003 (Brussels IIR) and settlement under Article 12. The central issues were whether the return discretion had been wrongly exercised, whether Article 13(b) was established, and whether the jurisdiction and settlement arguments could be pursued.

Decision

Permission to appeal was refused on the Article 10 and Article 12 arguments. Permission was granted on the Article 13 issues, but the appeal was dismissed.

1. Jurisdiction and settlement. The child was not settled in England when the Hague proceedings began. Her removal had been precipitate, her circumstances had been unsettled, her schooling had only recently stabilised, and a further move was contemplated. The settlement arguments had also not been raised before the first-instance judge. There was therefore no prospect of establishing the necessary settlement on appeal.
2. Child's objections and welfare. Once the child’s objection and sufficient age and maturity were established, the judge had a discretion whether to order return. Welfare considerations were important but not paramount. The return court was not deciding the child’s ultimate welfare or making the long-term placement decision. Its task was to decide whether the child should return to the country of habitual residence so that the courts there could determine those issues.
3. Exercise of discretion. The judge had considered the child’s attachment to her mother, her relationship with her father, the uncle’s care, the emotional consequences of separation, the mother’s illness, the child’s resilience and the practical arrangements for contact and reassurance. There was no presumption in favour of return to the biological parent. It was not fatal that the judge had not expressly compared every possible placement, since her reasoning showed that she understood the uncle’s alternative placement and compared the relevant attributes of the two situations.
4. Article 13(b). The anticipated distress caused by separation from the mother, adjustment to life with the father and the change of circumstances did not establish grave risk of psychological harm or an intolerable situation. The judge was entitled to rely on the child’s resilience and the possibility of regular communication and contact. The rejection of the Article 13(b) defence was therefore upheld.
5. Concurrent proceedings. Where care and Hague proceedings coexist and a foreign element exists, the parties and court should consider the basis of jurisdiction and record the court’s approach in the order. The Court referred to In re E (a child) [2014] EWHC 6 (Fam). It declined to impose a hard-and-fast rule, but observed that local-authority participation in Hague proceedings will often be valuable and may sometimes be indispensable.

• Court of Appeal (Civil Division): Permission to appeal was refused on the Article 10 and Article 12 arguments. Permission was granted on the Article 13 issues, but the appeal was dismissed: [2014] EWCA Civ 375.
• Principal Registry of the Family Division: Alison Russell QC, sitting as a deputy High Court judge, ordered the child's return to France on 2 December 2013.