C v B

In a summary child-return application under the international abduction regime, the court’s duty is to order return once wrongful removal or retention is established unless a Convention defence is made out. Consent requires clear evidence that the consenting parent understood the proposed arrangement to be permanent or long term. A child’s objection must be a genuine objection to return, not merely a wish to remain with the current carer, and the child must have sufficient age and maturity for the objection to carry weight. The grave-risk defence requires clear and cogent evidence of serious psychological or other harm. The court has no general welfare discretion to refuse return, although it retains limited discretion over the practical arrangements for return.

The applicant mother sought the summary return of two young children to Germany. The children had lived there from July 2012 until the father brought them to England in June 2013 for what was said to be a short visit and did not return them.

The German court had determined that the children were habitually resident in Germany, that Germany was the proper forum for parental-responsibility decisions, and that their retention in England was unlawful. The father’s appeal to the higher regional court in Stuttgart was dismissed. He relied on consent or acquiescence, the children’s objections, and grave risk of psychological or other harm.

1. Return order. The children had been wrongfully retained in England. The German courts had already determined habitual residence, the proper forum, and the absence of consent. It would be contrary to the principles of the international Convention for the English court to sit in judgment on those decisions.
2. Consent. Even independently of the German decisions, the father had not established consent. The defence required the clearest evidence that the mother knew precisely what she was consenting to, namely a permanent and intended long-term arrangement. The evidence did not satisfy that test.
3. Children’s objections. The younger child did not understand the issue. Although the older child expressed a strong wish not to return, she lacked sufficient age and maturity for her views to amount to an effective Convention defence. The court distinguished an objection to return from a general wish not to leave the present parent.
4. Grave risk. The allegations concerning the mother’s capacity, accommodation, disruption of the children’s settled life and education did not meet the demanding standard. Clear and cogent evidence was required to establish a risk of serious emotional or other harm on return.
5. Discretion and arrangements. The court had no general welfare discretion to refuse return once the defences failed. Nor was it appropriate to defer return while the father sought permission from the German court to relocate the children back to England. The court retained discretion over the manner of return. In the circumstances, a prolonged handover was considered potentially harmful, and the mother was permitted to collect the children on Saturday and return them to Germany on Sunday.

The judgment describes antecedent proceedings in Germany. The German court found that the children were habitually resident in Germany and that their retention in England was unlawful. The father’s appeal to the higher regional court in Stuttgart was dismissed on 10 April 2014. The present decision was a first-instance determination of the English summary-return application.