B (Children)

In a summary return application under the Hague Convention on the Civil Aspects of International Child Abduction 1980, parental acrimony does not itself establish a grave risk under Art. 13(b) where the risk arises chiefly from the parents living together and is not country-specific. The court must assess disputed allegations at their reasonable highest and ask whether protective measures can address them. A child’s mild preference for England or its schools is not an objection. Where the child-objections gateway is met, views are not determinative. The court must weigh their strength, authenticity, age and maturity, parental influence, welfare and the Convention’s return-and-deterrence policy. Flagrant retention after holiday contact warrants particular weight.

The mother sought the summary return of three children to Spain after their father retained them in England beyond an agreed holiday. The children had been habitually resident in Spain. The father relied on the Article 13(b) grave-risk defence and the children’s objections.

The High Court dismissed the application, finding both defences established and exercising its discretion against return. The mother appealed in relation to Article 13(b), the objections of the youngest child, and the exercise of discretion. The central questions were whether the statutory and Convention defences were made out and, if so, whether the children should nevertheless be returned.

1. Appeal allowed. The Court of Appeal ordered the immediate return of the children to Spain.
2. The Article 13(b) defence was not established. Parental acrimony arose most acutely from the parents living together and did not depend on which country the children were in. The judge also went beyond what was appropriate at a summary hearing by making a formal finding about the disputed incident involving M without a proper basis for rejecting the mother’s account. The correct approach, derived from Re E (Children) (Abduction: Custody Appeal) [2012] UKSC 27, was to take the allegation at its reasonable highest and ask whether the child could be protected against the asserted risk.
3. The isolated incident was given disproportionate weight. The father’s presence, parental undertakings, and the resources of the Spanish legal and child-protection systems provided protective features. Even if the father were imprisoned, protective arrangements could be devised. The evidence therefore fell considerably short of establishing grave risk or an intolerable situation.
4. The youngest child, A, had expressed no more than a mild preference for England and its schools. That fell far short of an objection under Article 13. The older children’s objections did engage the court’s discretion.
5. The discretion had to be exercised in accordance with Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55. Relevant considerations included the nature and strength of the objections, whether they were authentically the children’s own or resulted from parental influence, their relationship to welfare considerations, the general Convention objectives, and the children’s ages and maturity. The views were not determinative.
6. The judge gave insufficient weight to the Convention’s objectives of prompt return and deterrence, particularly given the flagrant retention after holiday contact and the immediate cutting-off of contact with the mother. He also failed properly to evaluate the Cafcass evidence of parental conflict, the children’s rapid change in attitude, and their positive contact with the mother after the incident. The discretion to refuse return therefore could not stand.
7. Remittal was unnecessary because the Court of Appeal was in as good a position to decide the matter. The children’s welfare was not served by living apart from their mother under the father’s almost exclusive influence. A return order was appropriate.

• Court of Appeal (Civil Division) — In [2018] EWCA Civ 614, allowed the mother’s appeal and ordered the immediate return of the children to Spain.
• High Court, Family Division — On 29 November 2017, HHJ Gareth Jones dismissed the mother’s application for summary return, finding the Article 13(b) and child-objections defences established and exercising the discretion against return.