R (A Child)

In Hague Convention proceedings, a child’s objection to return is distinct from a preference. An objection crosses a fairly low threshold and requires a factual determination, but it does not determine the application. Its weight is assessed in the light of the child’s age, maturity, the strength and roots of the objection, and matters such as parental influence.

A consent order may be set aside for a significant change of circumstances only where the change undermines the order’s fundamental assumption and would lead to a different order. The court may draw reasonable inferences from admitted or undisputed facts. In Hague proceedings, summary determination on the papers is ordinarily appropriate, subject to exceptional cases requiring evidence on decisive disputed facts.

The father sought permission to appeal from the refusal by Sir Peter Singer in the High Court Family Division, case FD15P00077, to set aside a consent order made by Holman J on 27 March 2015. The order provided for the return of the child, E, to Turkey under the Convention on the Civil Aspects of International Child Abduction 1980.

E refused two attempted returns. The father alleged a significant change of circumstances, contending that E’s later conduct demonstrated an objection to return and that the court should reconsider the matter. The High Court rejected the application, finding no material alteration in circumstances. The issues before the Court of Appeal included material change, parental influence, the need for oral evidence, and whether E should be joined as a party.

1. Permission and disposition. The application for permission to appeal was refused. The court heard the arguments which would have been advanced on the appeal and concluded that there was no realistic prospect of success.
2. A consent order may be set aside where a change of circumstances invalidates the fundamental assumption on which it was made and would lead to a different order. The question was not whether Holman J’s original assessment of E’s views as a preference rather than an objection was correct, but whether circumstances arising later significantly undermined the consent order. The father had agreed to the order despite knowing the judge’s provisional view and had not established duress or coercion.
3. Under Article 13(2) of the Convention on the Civil Aspects of International Child Abduction 1980, as explained in Re M (Republic of Ireland) (Child Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26, the threshold for an objection is fairly low. The court must determine factually whether the child objects. An objection is not determinative, but informs a fact-specific discretion concerning summary return. The child’s age and maturity under Article 13B, together with the root and strength of the objection and adverse parental influence, are relevant.
4. E’s behaviour at the airport was a strong objection, but the judge was entitled to consider whether it represented a material change. The admitted and undisputed facts supported findings that the father had involved E in obtaining evidence, communicated his own fears to her, and influenced her view of the dispute. Such manipulation reduced the weight of the objection. The judge was entitled to draw inferences without further oral evidence.
5. Hague Convention applications ordinarily proceed summarily on the papers and submissions, save in exceptional cases where evidence is required to resolve disputed facts which will effectively decide the application. The procedure adopted was not perverse or unfair.
6. The refusal to join E as a party was plainly right. Her views were clearly stated; a further voice would add no material necessary for decision and risk reinforcing her polarised position. This accorded with the ratio of Re D (Abduction: Rights of Custody) 2007 1 AC 619, paragraph 60.
7. The asserted settlement, delay and implementation difficulties did not make the change material. The circumstances would not have led to a different order.

1. Court of Appeal (Civil Division): Permission to appeal was refused on 14 October 2015. The court concluded that the proposed appeal had no realistic prospect of success.
2. High Court Family Division: Sir Peter Singer refused the father’s application to set aside the consent order, finding no significant change of circumstances. The consent order had been made by Holman J on 27 March 2015 in Hague proceedings.