In the matter of M (A Child)

In an exceptional child-welfare case, an interim return order may be made before the child’s wishes and feelings have been obtained if the judge has considered how the child is to be heard and concludes that return will enable a more meaningful and productive assessment. The usual importance of hearing a child, particularly one of 15, does not impose an inflexible requirement that views must always be obtained first. The court may weigh short-term disruption against the advantages of determining the child’s future through an objective welfare assessment. A current and reliable welfare assessment may justify return where earlier enquiries are outdated and the circumstances remain unclear.

The father sought permission to appeal, with the appeal to follow if permission were granted, against Newton J’s order of 29 August 2018. The order required him to secure the return from Thailand to England of his 15-year-old daughter, whose welfare had been the subject of earlier care proceedings, wardship and repeated return orders. The father argued that the order had been made without sufficient evidence, including the child’s wishes and feelings, her present circumstances and the effect of return. The local authority, mother and Children’s Guardian supported immediate return so that proper enquiries and assessments could be conducted in England. The central issue was whether the judge was entitled to order return before the child had been heard and before fuller evidence about her situation was available.

Permission to appeal was refused on all grounds. Newton J’s order was one which he was entitled to make, and the contrary was not arguable.

1. There remained a solid and unresolved basis for concern about the child’s welfare. The concerns included estrangement from her mother, apparent lack of education and uncertainty about her living circumstances. The welfare assessment undertaken in Thailand in 2016 was considerably out of date.
2. The father’s response to legitimate child-protection efforts was materially un reassuring. He had ignored repeated return orders, appeared to have evaded or obfuscated enquiries, and had re-entered the jurisdiction without informing the authorities.
3. Although return would cause short-term disruption, that disruption was likely to be relatively slight and was clearly outweighed by the advantages of determining the child’s long-term future on the basis of an objective welfare assessment.
4. As Re D makes clear, the court must consider whether and how the child is to be heard. It will not usually be appropriate to make even an interim decision concerning a child of 15 without first obtaining the child’s views. However, the requirement is not inflexible. In this unusual case, the judge was entitled to prefer return to England over a potentially prolonged attempt to obtain information of uncertain evidential value while the child remained in Thailand. Return would enable the child’s wishes and feelings to be heard in a meaningful and productive way.
5. The order would permit a more informed decision at the later hearing, including a decision to allow the child to return to Thailand if that proved to be in her interests.

The stay was lifted. The timetable under Newton J’s order was restored with the dates postponed by one week. The father was directed to take all necessary steps to encourage the child to travel as directed, with a penal notice added.

• Court of Appeal (Civil Division): Permission to appeal refused on all grounds. Newton J’s order was upheld in substance, the stay was lifted and consequential directions were made.
• High Court of Justice (Family Division): Newton J, on 29 August 2018, ordered the father to secure the child’s return from Thailand to England and refused permission to appeal.