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

The child's objections exception under Article 13 of the 1980 Hague Convention requires a straightforward assessment of whether the child objects to return and has sufficient age and maturity. An objection need not involve wholesale rejection of the country of habitual residence. The judge determines whether an objection exists from the evidence, including the child's wishes and feelings conveyed by CAFCASS.

Once the gateway is established, the court exercises a broad discretion which includes Convention policy and the circumstances of the proposed return. Possible parental influence does not necessarily prevent views from being genuinely and strongly held. Substantial delay and changed circumstances may increase the significance of disruption caused by a return pending the eventual welfare decision.

Four children, aged nine to 13, had lived in Australia with their mother following their parents' separation. Their father lived in England and retained them there after an agreed Christmas holiday. He admitted that the retention was wrongful. The mother applied for their summary return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The father relied on acquiescence and the children's objections.

Judge Bellamy, sitting as a High Court judge, rejected both grounds and ordered return. He also concluded that he would have ordered return if the children had established objections. His decision was reported as Re F (Abduction: Acquiescence: Child's Objections) [2015] EWHC 2045 (Fam). The father and the children appealed, the children having received permission to appeal out of time. The acquiescence finding was unchallenged. The central questions were whether the children's views constituted objections and, if so, whether the resulting discretion should be exercised against summary return.

The appeals were allowed unanimously. The court substituted a finding that the children objected to returning to Australia and dismissed the mother's application for summary return.

1. The Article 13 gateway required a straightforward and robust assessment of whether the children objected to return and had attained an age and degree of maturity at which their views should be taken into account. Technical sub-tests should be avoided. The approach in Re M (Republic of Ireland)(Child's Objections)(Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 was reaffirmed. Whether a child objected was a question of fact. Neither wholesale rejection of the country nor an inability to identify positive features of it was required (paras 32–35).

2. CAFCASS should ascertain and convey the children's thoughts and feelings, enabling the judge to determine whether they objected. Officers ordinarily explored the subject without directly asking whether children objected. Descriptions such as preferences or objections informed the judge's assessment but supplied no definitive Article 13 classification. The totality of the evidence established objections by all four children. Their age and maturity were undisputed, so the discretionary gateway was open (paras 39–41).

3. The first-instance discretionary assessment was too narrow. Although summary-return proceedings were distinct from a full welfare hearing, the discretion admitted a wide range of considerations, as recognised in Re M (Abduction: Zimbabwe) [2008] 1 FLR 251. The uncertainty over accommodation and schooling in Australia, and the absence of extended family support there, required consideration. The father's agreement to provide financial support did not resolve those matters (paras 42–45).

4. The children's views were genuinely and strongly held, notwithstanding possible influence from their circumstances. Their maturity, cogent explanations and enduring wishes carried weight, together with the potential emotional disruption and harm to their relationship with their mother if returned. Their former Australian home was unavailable, considerable time had elapsed, and they had established lives in England. Those circumstances increased the significance of disruption from a potentially temporary return. Giving full weight to Convention policy, competing risks and the father's abuse of financial control, the appropriate exercise of discretion was to refuse return (paras 50–56).

5. Obiter: Judicial meetings with children required careful planning and an opportunity for the parties to make submissions about what emerged. Consideration of children's participation in Hague proceedings should occur at the earliest possible stage. The court left the interview and joinder challenges undetermined. Its decision did not resolve the children's long-term welfare arrangements or whether they should eventually live in Australia (paras 57–59).

• Court of Appeal (Civil Division): In [2015] EWCA Civ 1022 , allowed the father's and children's appeals, substituted a finding that the children objected to return, and dismissed the mother's summary-return application. The father received permission to appeal on 30 July 2015. The children received permission to appeal out of time on 13 August 2015.
• High Court, Family Division: Judge Bellamy, sitting as a High Court judge, ordered the four children's return to Australia on 2 July 2015 in Re F (Abduction: Acquiescence: Child's Objections) [2015] EWHC 2045 (Fam) . He rejected acquiescence and the children's objections, and alternatively concluded that discretion favoured return. The acquiescence determination was not appealed.