U-B (A Child)

Under Article 13 of the 1980 Hague Convention, a child’s objection is not the same as a refusal to return. The court must evaluate the child’s overall views in their factual context. A child may object while recognising advantages in the requesting state or saying that he would return if ordered. The temporary appeal of a new environment, sometimes called a bubble of respite, may be relevant but is not a separate legal test. Nor is an additional test of exceptionality required. The Convention’s prompt-return and comity objectives remain relevant at the discretionary stage. An appellate court should respect the trial judge’s evaluative assessment, particularly in summary proceedings.

A 14-year-old child, who had lived with his mother in Spain, remained in England after an extended holiday with his father. The mother applied under Article 13 of the 1980 Hague Convention for his summary return. The High Court, applying the child-objection exception, refused to order return and exercised its discretion against it.

The mother appealed, challenging the approach to objection, the assessment of the child’s views, the exercise of discretion and the adequacy of the judge’s reasoning. The Court of Appeal also determined applications concerning fresh evidence and the child’s joinder as a party.

The appeal was unanimously dismissed. The application to adduce fresh evidence was refused save for material concerning the Spanish proceedings. The application to join the child as a party to the appeal was also refused.

1. The court treated the Article 13 inquiry as involving consideration of whether the child objects to return, whether the child has sufficient age and maturity for the views to be taken into account, and, if so, how the resulting discretion should be exercised. The court adopted the approach in Re M (Republic of Ireland) [2015] EWCA Civ 26.
2. The word objects is not equivalent to refuses. A child may object despite recognising positive features of the requesting state or being willing to return if ordered. Whether the child’s views amount to an objection is an evaluative assessment of the overall evidence. The judge was entitled to find that the child objected.
3. The context in which views are expressed may be relevant. The temporary appeal of a new environment, described in Re K (Abduction: Case Management) [2011] 1 FLR 1268 as a bubble of respite, is not a separate test under Article 13. No additional test of exceptionality is required.
4. Lord Justice Davis emphasised that the Convention’s purposes under Articles 1 and 12, including prompt return and comity, must be accommodated within the Article 13 exception. They remained relevant but could be outweighed by the individual circumstances.
5. In a summary Hague hearing, a judge need not explain precisely why every factor outweighs another. It is sufficient that the judgment shows that the relevant matters were considered and that the balancing exercise was open to the judge. The Court of Appeal should not conduct an effective rehearing or interfere merely because another evaluation was possible.
6. Issues concerning a child’s views and party status should ordinarily be addressed at the outset of the first-instance proceedings. Although exceptional cases may exist, the appellate court will generally be unsympathetic to a first application for party status made at the appeal stage.

• Court of Appeal (Civil Division): dismissed the mother’s appeal and upheld the refusal to order the child’s return.
• High Court, Family Division: His Honour Judge Bromilow, sitting as a deputy judge, refused the mother’s application for summary return under the child-objection exception in Article 13.