Re P (Abduction: Child's Objections)

A child will only rarely be joined as a party to proceedings under the 1980 Hague Child Abduction Convention. Joinder is unnecessary where an experienced Cafcass officer has adequately conveyed the child’s views and interests, and the parties have advanced the relevant legal arguments.

Where a sufficiently mature child objects to returning, the court has a broad discretion. The child’s views are neither determinative nor presumptively decisive. The court must assess their nature, strength and authenticity, the child’s age and maturity, their relationship with wider welfare considerations, and Convention policy. An appellate court must read the first-instance judgment as a whole. The evaluation of weight remains primarily for the trial judge.

The mother wrongfully removed three children from Germany and concealed their whereabouts in England and Wales. The father obtained an order under the 1980 Hague Child Abduction Convention requiring their return to Germany.

The oldest child, P, aged 13, applied to be joined for the purpose of challenging the return order. He contended that he should have been separately represented below and that the judge had inadequately evaluated his strong objections to returning. The central issues were whether P should have been joined and whether the judge’s exercise of discretion was flawed.

1. Disposition. P’s application to be joined and to set aside the return order was dismissed. The Deputy High Court Judge had been entitled to refuse separate representation and had correctly ordered P’s return to Germany.
2. A child will only rarely be joined as a party to proceedings under the 1980 Hague Child Abduction Convention. The decisive question under rule 16.2 of the Family Procedure Rules 2010 is whether joinder is in the child’s best interests. Separate representation was unnecessary because P’s views were clearly and independently presented through the report and oral evidence of an experienced Cafcass officer. His interests and the relevant legal arguments were fully before the court. Nothing sufficient would have been gained to justify the additional delay and forensic intrusion.
3. The first-instance judge had correctly found that P objected to returning and had sufficient age and maturity for his views to be taken into account. That finding brought a broad discretion into operation. Applying In re M, the child’s views were not determinative or presumptively decisive. Relevant considerations included their nature and strength, their authenticity, the influence of the abducting parent, the child’s age and maturity, wider welfare matters, and Convention policy.
4. The first-instance judgment had to be read as a whole. Although its concluding paragraph was brief, the earlier analysis demonstrated a proper balancing exercise. The judge considered the strength and reasons for P’s objections, his age and maturity, his particular needs, and the extent to which his views were authentically his own. He was entitled to find that those views were partly produced by the mother’s hostility towards the father and resistance to contact.
5. The judge had also considered the children’s possible return without the mother and the available protective measures. He was entitled to conclude that the German courts and authorities could protect the children and determine their welfare arrangements. Questions of weight were for the trial judge, and his evaluation was neither flawed nor wrong.

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 260, dismissed P’s application to be joined and to set aside the return order.
2. Family Division of the High Court: Mr Robert Peel QC, sitting as a Deputy High Court Judge, ordered the three children’s return to Germany under the 1980 Hague Child Abduction Convention.