F (Children), Re

Where the child-objections gateway under Article 13 of the Hague Convention is established, the court has a broad discretion. The summary character of Hague proceedings does not fetter that discretion, and a child’s objections are not determinative.

An appellate court must read an ex tempore judgment as a whole and in its hearing context. It should not infer misdirection from a narrow textual analysis where the judgment shows that the judge considered the relevant matters and was entitled to give them the weight chosen.

A child’s opportunity to be heard and to participate remains a fundamental consideration in family proceedings. The methods of participation must continue to develop.

The Hungarian parents’ three children were brought to England by their mother during Hungarian family proceedings. It was common ground that the removal was unlawful for Hague Convention purposes.

The father sought their summary return. The mother relied on the children’s objections under Article 13 and on the grave-risk defence under Article 13(b). The deputy judge rejected the grave-risk defence, found that L and F objected and had sufficient maturity for their views to be considered, but ordered the children’s return to Hungary in the exercise of discretion.

The mother and L appealed. They alleged that the deputy judge had fettered his discretion and failed to consider relevant matters. L also raised concerns about her participation, although all of her further evidence was admitted on appeal.

Disposition

1. The Court of Appeal dismissed both appeals. It upheld the order for the children’s summary return to Hungary, subject to the father’s further undertakings concerning the Hungarian interim custody arrangements.

2. The deputy judge had not treated his discretion as constrained. Read in context, his reference to a summary process described the nature of Hague proceedings, not the scope of the discretion which arose after the children’s objections had been established.

3. The judge’s reasons had to be read as a whole, particularly because they were delivered ex tempore after a one-day hearing. The appellate court should not search for error through narrow textual analysis or substitute its own discretionary assessment. His reasons showed that he had considered the children’s objections, their lives in England, the possible parental influence, the prior circumstances in Hungary, the mother’s position, and the protective measures available on return.

4. No error of law, principle or fact was established. The deputy judge was entitled to give the relevant factors the weight he did and to conclude that return was appropriate. The additional evidence supplied for L did not undermine that conclusion. Since that evidence was before the Court of Appeal, any earlier procedural defect gave L no separate basis for overturning the order.

Participation of children

Although unnecessary to the result, the court emphasised the continuing change in family procedure. A child must have a proper opportunity to be heard and to participate in proceedings affecting them. A judicial meeting is not ordinarily a means of obtaining evidence; where evidence is required, representation, a professional report, evidence from the child without joinder, or joinder as a party may be appropriate. The court anticipated that increasing numbers of children would give evidence in family proceedings.

• Court of Appeal (Civil Division) Dismissed the mother’s and L’s appeals in [2016] EWCA Civ 546.

• High Court of Justice, Family Division On 2 February 2016, a deputy judge rejected the Article 13(b) defence and ordered the children’s summary return to Hungary after exercising discretion following L’s and F’s objections.