C v M & Anor.

In Hague Convention proceedings, a child’s objection is a gateway to a discretion, not a determinative defence. The court must assess the nature and strength of the objection, its authenticity, the child’s age and maturity, welfare considerations, protective measures and the Convention’s return policy.

Article 13(b) requires a forward-looking assessment of the situation on return. Protective measures must be evaluated against the actual risks to each child. Where return would separate a young child from the principal carer and sibling, grave emotional harm or an intolerable situation may be established despite existing contact with the left-behind parent.

The summary nature of Hague proceedings limits detailed welfare investigations. The court may nevertheless refuse return where the Article 13 defences are established and the Convention policy considerations are outweighed by the children’s welfare.

The father applied under the 1980 Hague Convention for the return of X, aged 12, and Y, aged 5, to Mauritius after their unilateral removal to England by the mother. An earlier return order had been made on 3 February 2023 in C v M, reported as [2023] EWHC 208 (Fam).

X was subsequently joined as a party and successfully applied to set aside the return order. At the rehearing, the father sought the return of both children, alternatively Y alone. The mother and X relied on Article 13 objections and Article 13(b) grave-risk defences. The central issues were whether X’s strengthened objections justified refusing her return, whether separation of Y from X and the mother created grave risk or an intolerable situation, and how the court should exercise its discretion.

1. X’s objections. The court accepted that X objected to returning to Mauritius and had the requisite age and maturity. Her objections had changed in quality and included concerns about Mauritius and her parents’ ability to protect her. The evidence of her distress, given by her headteacher and solicitor, was accepted as authentic and compelling, although the possibility of maternal influence was considered. The court gave considerable weight to X’s strongly held views, age and maturity.
2. Exercise of discretion. The Convention’s policy considerations remained strong because of the unilateral removal and its impact on the father’s relationship with the children. They were nevertheless outweighed by the evidence concerning X’s welfare and the likely emotional consequences of compelling her return. The court therefore exercised its discretion not to order X’s return.
3. Article 13(b). The defence required a forward-looking assessment of the situation on return and the efficacy of protective measures. In relation to Y, separation from his mother and sister, with whom he had always lived and who had been his principal carers, would expose him to grave emotional harm or an intolerable situation. The father’s relationship with Y and proposed care arrangements did not sufficiently reduce that risk. The uncertainty whether the mother and X would follow Y increased it.
4. Article 13(b) also applied to X. Ordering her return against her accepted and express wishes would place her at grave risk of harm. The protective measures, although substantial, were insufficient in the circumstances.
5. Final discretion and orders. After reconsidering the matter in the round, the court declined to order the return of either child. The father’s relationship with the children could be supported by contact in England. A more detailed welfare enquiry might justify different long-term arrangements, but that was outside the purpose of the summary Hague proceedings. The court encouraged the adults to obtain specialist support to avoid further contested litigation.

The judgment itself records that an earlier return order was made by the High Court on 3 February 2023 in C v M, reported as [2023] EWHC 208 (Fam). That order was set aside on 4 April 2023. Permission to appeal the set-aside order was refused by Baker LJ on 28 April 2023. The present judgment determined the rehearing and refused the return of both children.