K (1980 Hague Convention) (Lithuania), Re

Once the child-objections exception under Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 is established, the court must exercise its discretion by evaluating the weight of the child’s views in their full context. Relevant matters include the objection’s nature, strength and authenticity, the child’s maturity, any parental influence, and the practical welfare consequences of return.

Hague proceedings remain summary. A judge need make factual findings about disputed events only where necessary and possible. Under Article 13b, the person resisting return must substantiate a grave risk. If the evidence permits that risk to be confidently rejected, the court need not investigate protective measures.

The mother wrongfully retained her 11-year-old daughter, E, in England after a holiday from Lithuania. Hogg J in the Family Division ordered E’s immediate return under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The mother appealed. She relied on E’s objection to returning, which the father accepted was made by a child of sufficient age and maturity, and on the grave-risk exception in Article 13b. She also alleged errors in the judge’s treatment of the CAFCASS officer’s evidence and in declining to make findings about a disputed incident in August 2014.

The central questions were whether the judge’s discretionary treatment of E’s objections was flawed and whether she adopted the correct approach to Article 13b.

1. Appeal dismissed unanimously. Black LJ, with whom Lewison and Arden LJJ agreed, held that the return order was open to Hogg J on the evidence.

2. The child-objections gateway was conceded. The only issue was the exercise of discretion. Hogg J’s references to the objections not being wholly genuine or valid concerned the weight to be given to them, not whether E objected. She was entitled to regard sustained maternal influence as material, while still taking E’s wishes into account. Her judgment also addressed E’s maturity, her distress, the nature of the objections, contact, E’s Lithuanian home, available support and the father’s proposed safeguards. The approach was consistent with Re M (Children)(Abduction: Rights of Custody) [2007] UKHL 55 and Re M (Republic of Ireland)(Child’s objections) [2015] EWCA Civ 26.

3. A Hague judge need not make provisional factual findings merely because a disputed incident is relevant. These are summary proceedings. Whether findings are necessary or possible depends on the case. Hogg J understood the competing accounts, properly relied on independent police material where appropriate, and could assess the CAFCASS evidence cautiously without first resolving responsibility for the incident.

4. A CAFCASS officer’s conclusions do not bind the judge. The judge may differ from them if reasons are given. Re KP (Abduction: Child’s Objections) [2014] EWCA 554 concerned judicial questioning of a child and did not establish otherwise.

5. The mother had to substantiate the Article 13b exception. Applying Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27, Hogg J could reject the alleged grave risk on the evidence without proceeding to protective measures. Her assessment was not outside the range of reasonable judgments identified in Re S (A Child)(Abduction: Rights of Custody) [2012] UKSC 10. The mother’s eventual agreement to return with E further weakened the Article 13b case.

6. The management, timing and arrangements for E’s return were remitted to Hogg J, or another Family Division judge if she was unavailable within a reasonable time.

• Court of Appeal (Civil Division) — dismissed the mother’s appeal and upheld the return order: [2015] EWCA Civ 720.
• High Court of Justice, Family Division — Hogg J ordered E’s forthwith return to Lithuania under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 on 12 March 2015.