M (Republic of Ireland) (Child's Objections) (Joinder of Children As Parties To Appeal)

The gateway for the child’s objections exception under Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 is straightforward and fairly low. The court asks whether the child objects to return and has sufficient age and maturity for those views to be taken into account. Detailed examination of the strength, authenticity and welfare implications of the objections belongs principally to the discretionary stage.

Once the gateway is crossed, the discretion is at large. The child’s views are neither determinative nor presumptively decisive. They must be weighed with welfare, Convention policy and all other relevant circumstances.

When a child first seeks joinder on appeal, the Civil Procedure Rules 1998 apply. Welfare remains relevant but is not a determinative best-interests threshold. A litigation friend will ordinarily protect and regulate the child’s participation.

The mother wrongfully removed three children from the Republic of Ireland to England. Their father obtained an order from Roberts J on 18 June 2014 requiring their return under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The mother had relied on grave risk and the children’s objections under Article 13.

After judgment, J and his older brother D consulted solicitors. D was outside the Convention because of his age. J, D and the mother received permission to appeal, and J and D were joined as parties at the appellate stage.

The substantive issue was whether the judge had wrongly rejected the children’s objections and exercised the ensuing discretion too narrowly. The procedural issue concerned the principles and arrangements governing children who seek to become parties for the first time in the Court of Appeal.

The appeals were allowed unanimously. The return order was set aside and the father’s application for the children’s return to Ireland was dismissed.

1. The Article 13 gateway requires a straightforward and robust application of the Convention’s language. The court must decide whether the child objects to return and whether the child has attained an age and degree of maturity at which it is appropriate to take account of those views. This is a fairly low threshold. The detailed gateway analysis associated with Re T [2000] 2 FLR 192 should be abandoned.

2. Factors such as the strength and authenticity of the objections, parental influence, the child’s understanding, welfare implications and the likelihood that concerns will diminish after return principally belong to the discretionary stage. Under Re M [2007] UKHL 55, that discretion is at large and contains no additional exceptionality requirement. The child’s views are neither determinative nor presumptively decisive. Convention policy, including prompt return, comity and deterrence, remains vital.

3. The evidence established that all three children objected to returning. J and T possessed sufficient age and maturity for their views to be taken into account. It was unnecessary to decide whether the youngest child, I, crossed the maturity threshold because returning her without her brothers would create an intolerable situation.

4. The first-instance discretion had focused too narrowly on protective arrangements in Ireland. The children’s genuine fears, J’s emotional vulnerability, the likely delay before protective arrangements reassured them, separation from their older brother, their ages and the disruption of treatment weighed heavily against return. Those matters outweighed the Convention considerations on the particular facts.

5. Hague proceedings are summary and do not permit a full welfare investigation or final resolution of disputed facts. A court must reach a practical view on imperfect evidence. Strong and genuine fears can be relevant even where their factual basis has not been conclusively established.

6. Joinder for the first time on appeal is governed by the Civil Procedure Rules 1998, not the Family Procedure Rules 2010. Welfare is relevant but is not a determinative best-interests threshold. Guidance in Practice Direction 16A may assist by analogy. A litigation friend, commonly the child’s solicitor, can regulate the child’s participation and protect the child’s interests. The joinder previously ordered was therefore confirmed.

1. Court of Appeal (Civil Division): The court granted the children and mother permission to appeal, joined J and D at the appellate stage, allowed the appeals, set aside the return order and dismissed the father’s application: [2015] EWCA Civ 26.
2. High Court, Family Division: Roberts J ordered the three children’s return to the Republic of Ireland on 18 June 2014. No neutral citation is stated.