Re C (A Child) (Child Abduction: Parent’s refusal to return with child)

Where a parent opposing a child’s return under the Hague Convention asserts that they will not accompany the child, the court must determine what that parent is likely to do. The question is subjective and factual. It is not what a reasonable parent would do. Available protective measures are relevant to the extent that they may affect the parent’s likely conduct.

The court may receive oral evidence on that question, but oral evidence is not required. If the exception in Article 13(b) is not established and Article 12 applies, the court has no discretion to refuse return. It must order the child’s return forthwith.

A six-year-old child, habitually resident in France, was brought to England by his mother shortly before Covid restrictions prevented their immediate return. They remained after restrictions eased, and the father commenced Hague Convention proceedings.

Cohen J ordered the child’s return to France. He found that the mother would probably accompany the child despite her stated refusal. Alternatively, the child could return with his father and paternal aunt. The mother appealed only against the treatment of her defence under Article 13(b), contending principally that the judge lacked a sufficient evidential basis for finding that she would return and had wrongly assessed what she could reasonably be expected to tolerate.

1. Appeal dismissed. Cohen J was entitled to find that the mother would return to France if the child were ordered to go there. Her reasons for remaining in England focused on protecting the child from the previous circumstances in France. The available accommodation, protective measures and financial arrangements could provide sufficient security. Together with the judge’s assessment that she was a loving and devoted mother, those matters supported his finding: paras 58–65.
2. The relevant question was whether this particular mother would return, not whether it would be reasonable for her to do so. Protective measures were relevant because of their likely effect on her reasoning and conduct. The judge expressly adopted that subjective inquiry and did not impose an objective standard: paras 63–65.
3. Hague Convention proceedings are summary and oral evidence is exceptional. On an issue concerning whether a parent is likely to accompany the child, the court may receive oral evidence, but is not required to do so. Neither party had requested oral evidence, and the judge committed no error by determining the issue on the written material: paras 59–61.
4. Read as a whole, the judgment showed that the Article 13(b) defence had been rejected. The judge’s later purported exercise of discretion was erroneous because, once the final defence failed, Article 12 obliged the court to order return. The error was immaterial because the purported discretionary decision produced the return required by Article 12: paras 49–50.
5. The absence of an express reference to the Guide to Good Practice did not invalidate the decision. Its guidance concerning a taking parent’s unequivocal refusal was consistent with the judge’s approach: para 51.
6. Under section 13(6) of the Children and Families Act 2014, expert evidence could be permitted only if necessary to resolve the proceedings justly. The evidence disclosed no basis for finding a psychological report necessary. The parent advancing Article 13(b) bore primary responsibility for establishing the defence: paras 54–56.
7. The alternative arrangements involving the father and paternal aunt did not justify setting aside the return order. They had not been challenged below, and the French courts could respond to any welfare concerns: para 57.

• Court of Appeal (Civil Division): The mother’s appeal was dismissed unanimously. Cohen J’s return order remained in force: [2021] EWCA Civ 1236.
• High Court: On 30 March 2021, Cohen J granted the father’s Hague Convention application and ordered the child’s return to France, either with the mother or, if she refused to travel, with the father and paternal aunt.