K (1980 Hague Convention) (Lithuania), Re

Once the child’s objections exception under the 1980 Hague Convention is established, the court must exercise its discretion by evaluating the objections alongside other relevant considerations. Parental influence affects their weight and does not require their exclusion. A judge may depart from a CAFCASS officer’s conclusions with reasons and may approach evidence assigning blame for unresolved events with caution. Whether factual findings are necessary and possible depends on the particular case and the summary nature of the proceedings.

The person opposing return must substantiate an Article 13b exception. Where the evidence enables the judge confidently to exclude the alleged grave risk, the judge need not assume that disputed allegations are true and investigate protective measures. An appellate court should respect a risk assessment which was open to the trial judge.

The mother appealed against Hogg J’s order of 12 March 2015 requiring the return of her 11-year-old daughter to Lithuania under Article 12 of the 1980 Hague Convention. The father, who lived in Lithuania and had cared for the child there, had agreed to her visiting the mother in England during the summer holidays. The mother accepted that she had subsequently retained the child wrongfully.

The father accepted that the child objected to returning and had sufficient age and maturity for her views to be considered. The dispute concerned the resulting discretion and the mother’s separate allegation of grave risk under Article 13b. The evidence included conflicting accounts of a violent incident when the father attempted to collect the child, allegations about his earlier conduct, and a CAFCASS officer’s assessment of the child’s fears and objections. Hogg J ordered return after evaluating the influence of the maternal household and rejecting the grave-risk case. The appeal challenged her treatment of the objections, the officer’s evidence and the disputed allegations.

1. The appeal was dismissed unanimously. Black LJ’s reasoning was agreed by Lewison and Arden LJJ. The decision to order return despite the child’s objections was open to Hogg J on the evidence. Her reasons demonstrated that she had considered the appropriate factors and exercised her discretion without established error (paras 51, 54–56).

2. The child’s objections gateway was conceded. Questions about the validity or genuineness of those objections therefore concerned their weight and the child’s likely response to return. The judge considered influence alongside the nature and strength of the objections, their authenticity, maturity and wider welfare considerations. She critically evaluated the views rather than excluding them. Her approach accorded with Re M (Children)(Abduction: Rights of Custody) [2007] UKHL 55 and Re M (Republic of Ireland)(Child’s objections) [2015] EWCA Civ 26 (paras 27, 47–51).

3. A judge may differ from a CAFCASS officer or guardian, provided reasons are given. Re KP (Abduction: Child’s Objections) [2014] EWCA 554 concerned judicial questioning of a child and did not establish that the officer’s conclusions were determinative. Hogg J could criticise the officer’s attribution of blame for the disputed incident without first making her own findings. She was entitled to approach his evidence cautiously while retaining those parts she accepted. Neither her interventions nor the officer’s concern about another appointment established procedural irregularity (paras 40–46).

4. The summary nature of Hague proceedings protects both the Convention’s operation and children’s interests. Oral evidence is rightly rare. Whether findings about disputed events are necessary or possible is a matter for the judge in the circumstances. Hogg J understood the competing accounts, could rely on independent police evidence and was entitled to leave responsibility for the incident unresolved (para 45).

5. The mother bore the burden of substantiating Article 13b. The pragmatic approach described in Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27, involving assumed allegations and protective measures, was unnecessary where the evidence enabled the judge confidently to exclude the alleged risk. Hogg J evaluated the allegations against the mother’s conduct and evidence of beneficial parenting. Her conclusion was open to her and attracted the appellate restraint recognised in Re S (A Child)(Abduction: Rights of Custody) [2012] UKSC 10. The mother’s eventual agreement to accompany the child further weakened the exception (paras 52–53).

6. The management and timing of return were referred back to Hogg J, or another Family Division judge if she was unavailable within a reasonable period (para 54).

• Court of Appeal (Civil Division): In [2015] EWCA Civ 720 , the mother’s appeal was dismissed unanimously. The return order was upheld, with management and timing of return referred back to Hogg J or another Family Division judge if necessary.
• High Court, Family Division: On 12 March 2015, Hogg J ordered the child’s immediate return to Lithuania under Article 12 of the 1980 Hague Convention. She ordered return notwithstanding the established child’s objections exception and rejected the Article 13b exception.