F (Children), Re

A judgment must be read as a whole, in its context. Its reasons must explain the result to the parties and enable appellate scrutiny. An appellate court should resist identifying misdirection through narrow textual analysis or substituting its own assessment for a lawful exercise of discretion.

Where a child objects to return under the Hague Convention and has sufficient age and maturity, the court has a wide discretion. Relevant considerations include the nature, strength and authenticity of the objections, the child's welfare and general Convention considerations. The objections carry appropriate weight but need not determine the outcome. Guidance on participation emphasises opportunities for children to be heard. A meeting with the judge serves a different purpose from giving evidence; relevant evidence volunteered during a meeting requires consideration of how it should be formally adduced.

The proceedings concerned three Hungarian children whose mother had brought them to England while matrimonial proceedings were continuing in Hungary. Their father sought their return under the Hague Convention. The mother accepted that the removal was unlawful. She relied on the objections of the two daughters, L and F, and on an alleged grave risk of harm or an intolerable situation.

Newton J refused an application for L to be separately represented. At the final hearing, Mr Nicholas Francis QC, sitting as a Deputy High Court Judge, received reports and oral evidence from a CAFCASS officer. He rejected the grave-risk defence. He accepted that L and F satisfied the child-objections gateway but exercised his discretion to order all three children to return.

Black LJ refused L permission to appeal the representation decision but permitted both L and the mother to appeal the return order. The Court of Appeal admitted additional evidence conveying L's views and updating information about the Hungarian proceedings. The appeals challenged the scope and exercise of the Deputy Judge's discretion. L also alleged that inadequate participation had deprived him of relevant information.

Both appeals were dismissed. Sir James Munby P delivered the judgment, with which Arden LJ agreed.

1. A judgment must be read as a whole, having regard to its context and structure. Its essential purposes are to explain why the parties have won or lost and to permit an appellate court to assess its sustainability. A judge need not mechanically repeat the evidence, submissions or authorities. Applying Piglowska v Piglowski, the court should assume that the judge understood his functions unless the judgment demonstrated otherwise. Particular allowance was appropriate for an ex tempore judgment delivered after a one-day hearing attended by the parties (paras 22–24).
2. The Deputy Judge had not fettered his discretion. His reference to a summary process concerned the Hague proceedings as a whole. Read in context, his concluding remarks expressed regret about a difficult decision. They did not restrict the discretion arising once the child-objections gateway was satisfied (paras 25–26).
3. The discretion had been exercised on a sufficiently broad basis. The approach in In re M (Children) (Abduction: Rights of Custody) required consideration of the children's objections alongside welfare and Convention considerations. The Deputy Judge's concluding assessment incorporated his earlier discussion. He had considered the objections' reasons and strength, possible maternal influence, the family's previous circumstances, the children's lives in England, the impact on their mother and protective arrangements in Hungary. He gave L's objections appropriate weight while declining to treat them as determinative (paras 27–30).
4. The additional evidence supplied detail but did not establish a factual, legal or principled error. The Deputy Judge had considered all relevant factors and was entitled to assign their weight. As L had been permitted to appeal and all her evidence had been admitted, the alleged participation defects supplied no additional basis of complaint once her substantive challenge failed. The court assumed, without deciding, that she remained entitled to raise those defects (paras 19, 31–32).
5. By way of guidance, children must have an opportunity to be heard. Available methods include representation, an independent professional's report, a meeting with the judge and evidence without joinder. There is no presumption against children giving evidence in family proceedings. A judicial meeting is not a means of obtaining or testing evidence. If relevant evidence is volunteered, the judge should inform the parties and determine whether and how it should be adduced (paras 35–44).

The sibling-separation issue did not arise. The return order stood, with additional paternal undertakings concerning the enforcement and stay of Hungarian interim custody orders incorporated into the appellate order (paras 33–34).

• Court of Appeal (Civil Division): In F (Children), Re [2016] EWCA Civ 546 , both appeals against the return order were dismissed. Additional paternal undertakings were incorporated into the order.
• Court of Appeal (Civil Division): Black LJ stayed the return order on 18 February 2016. On 26 February 2016, in Re F (Children) [2016] EWCA Civ 354, she permitted the mother and L to appeal the return order but refused L permission to appeal the refusal of separate representation.
• High Court, Family Division: On 2 February 2016, Mr Nicholas Francis QC, sitting as a Deputy High Court Judge, rejected the grave-risk defence and ordered all three children to return to Hungary despite accepting the two daughters' objections.
• High Court, Family Division: At the pre-trial review on 20 January 2016, Newton J refused the application for L to be separately represented.