F (Child's Objections) (was Re N on appeal)

For the purposes of Article 13 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the question whether a child objects to return is a straightforward question of fact. The word “objects” bears its ordinary meaning. It does not require a wholesale rejection of the country of habitual residence or an inability to identify anything positive about it.

Once a mature child’s objection is established, the court has a broad discretion. It must give due weight to the Convention’s policy but consider all the circumstances, including the strength and genuineness of the children’s views, their current circumstances, and the practical consequences of a summary return.

Four children were wrongfully retained in England by their father after a Christmas holiday from Australia. Their mother applied for their summary return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

His Honour Judge Bellamy, sitting as a High Court judge, ordered their return in Re F (Abduction: Acquiescence: Child’s Objections) [2015] EWHC 2045 (Fam). He rejected the father’s case that the mother had acquiesced. He also held that the children’s stated wish to remain in England did not amount to objections within Article 13, and said that he would in any event have ordered return.

The father and the children appealed. The central issue was whether the evidence established Article 13 objections and, if so, how the discretion should be exercised.

1. Appeals allowed. The court substituted a finding that all four children objected to returning to Australia. Exercising the resulting Article 13 discretion, it dismissed the mother’s application for their summary return.

2. The Article 13 gateway required a straightforward and robust inquiry into whether the child objected to return and had sufficient age and maturity. Following Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26, the court rejected technical sub-tests. An objection need not be wholesale. A child may object to return despite retaining positive views of the country of habitual residence or of the left-behind parent’s care.

3. On the totality of the evidence, the judge’s contrary conclusion was not open to him. The children’s clear, enduring and reasoned resistance to return amounted to objections in the ordinary sense. Their maturity was not in issue.

4. The judge’s alternative discretionary analysis was too narrow. The discretion required consideration of a wide range of circumstances, consistently with Re M (Abduction: Zimbabwe) [2008] 1 FLR 251. The children’s views were genuinely and strongly held, even if influenced by their circumstances. Their former Australian home was no longer available, substantial time had passed, and a return would involve major disruption. Although the Convention’s policy and the father’s financial conduct carried significant weight, a summary return was not the correct order. The decision did not determine the children’s long-term welfare arrangements.

5. The court also observed that any judicial meeting with children requires careful planning and that parties must have an opportunity to make submissions on what emerges. Consideration of children’s participation should occur at the earliest stage of Hague proceedings.

• Court of Appeal (Civil Division): Allowed the father’s and children’s appeals, substituted a finding that the children objected to return, and dismissed the mother’s application for summary return.
• High Court, Family Division: His Honour Judge Bellamy ordered the children’s return to Australia in Re F (Abduction: Acquiescence: Child’s Objections) [2015] EWHC 2045 (Fam). He rejected acquiescence, found that the children had not established Article 13 objections, and would otherwise have ordered return in his discretion.