NG v OG

Recognition and enforcement of a foreign child-custody measure may be refused under Article 23(2)(b) of the 1996 Hague Convention where the child was not given an opportunity to be heard, contrary to fundamental procedural principles. The opportunity requires an age-appropriate enquiry into the child’s wishes and feelings, enabling the decision-maker to understand the child’s distinct point of view. A court should not revisit the merits or welfare issues where Article 7 preserves the foreign court’s jurisdiction, but procedural fairness remains independently relevant. Separate representation is not required in every case; an appropriately conducted CAFCASS enquiry may suffice. Habitual residence depends on integration in the relevant social and family environment, assessed on the facts.

The applicant sought recognition and enforcement of a Moscow custody order dated 2 April 2014 requiring the younger child, SG, to live with her. The application was made under the 1996 Hague Convention, following the children’s retention in England after contact, when they had been habitually resident in Russia.

The Russian court had sought information about the children’s circumstances and views, but no report was obtained. The children were not separately represented and SG was not given an opportunity to express her views before the custody order was made. A later CAFCASS report recorded strong views from both children that they should remain together in England. The issues were whether recognition and enforcement could be refused under Article 23(2)(b), whether the children required separate representation, and whether both children were now habitually resident in England.

1. Separate representation. The application for separate representation was refused. This was an application concerning recognition and enforcement rather than a welfare determination, and the CAFCASS officer had conducted a competent, age-appropriate enquiry into the children’s views.
2. Opportunity to be heard. Article 23(2)(b) permits refusal of recognition where, except in a case of urgency, the foreign measure was made without the child having been given an opportunity to be heard, in violation of fundamental procedural principles. The opportunity requires an age-appropriate enquiry into the child’s wishes and feelings. It is the child’s entitlement to have a voice, although the method of obtaining that voice depends on age and maturity. A CAFCASS interview will usually be sufficient, while separate representation will be required only in a limited class of cases.
3. The Russian court had identified Russia as the state of habitual residence and had sought a report, but SG was not heard directly or indirectly before the order was made. The failure was material because the relevant Russian law expressly required the court to take the child’s opinion into account. The later CAFCASS evidence showed that SG was capable of expressing clear and mature views and that return would not be in her best interests.
4. The application for registration and enforcement of the Russian order was therefore refused under Article 23(2)(b). The court did not revisit the merits of the Russian measure or conduct a welfare analysis under Article 7.
5. Although the children had initially been wrongfully retained, both had become integrated into their father’s home, their relationship with each other and their school in England. Applying the approach in Re A (Sexual Abuse: Disclosure), the court declared both children habitually resident in England.