P (A Child) (Abduction: Child’s Objections)

Where a child’s objections engage Article 13, the discretion to refuse a summary return order is at large. The child’s views are important but not determinative. The court must balance their nature, strength, maturity, authenticity and any parental influence against relevant welfare matters and the policy of the 1980 Hague Child Abduction Convention.

A judge errs by treating objections as the decisive factor and asking only whether there is a reason not to give effect to them. The Convention requires weight to be given to deterring unilateral retention and restoring the habitual-residence court’s ability to determine welfare disputes. A meeting between judge and child is not an occasion to gather evidence and requires particular care in summary Convention proceedings.

The mother sought the summary return to Romania of her 15-year-old son after the father wrongfully retained him in England following a holiday. The parties agreed that the child objected to returning and had sufficient age and maturity for his views to be taken into account under Article 13 of the 1980 Hague Child Abduction Convention.

A Deputy High Court Judge dismissed the application in the exercise of discretion, treating the strength, coherence and consistency of the child’s objections as the magnetic factor. The mother appealed, contending that the judge had failed to conduct a proper balancing exercise, had discounted material welfare considerations and Convention policy, and had misused information obtained during a meeting with the child.

1. Appeal allowed. The judge’s discretionary decision was vitiated by material errors. The Court of Appeal could re-exercise the discretion because the relevant evidence was sufficiently available and a rehearing was unnecessary.

2. Once a child’s objections engage Article 13, the discretion is at large. The court must not treat the objections as determinative. It must balance the wide range of relevant matters, including the nature and strength of the objections, their authenticity and parental influence, welfare considerations, and the policy of the 1980 Hague Child Abduction Convention. The exercise is not an inquiry into whether there is any reason not to give effect to the child’s views: see Re M [2008] 1 AC 1288 and In re M [2016] Fam 1.

3. The child’s objections weighed significantly against return because of his age and their consistency. They were not, however, coherent in the relevant sense. His account of life in Romania was inaccurate, he had below-expected maturity and insight, and the father had influenced him. The father’s assertion that the child could return if he wished did not neutralise that influence. The objections could not therefore be the magnetic factor.

4. The welfare assessment was also flawed. The wrongful retention abruptly removed the child from his lifelong primary carer without a welfare determination. Material factors supporting return included the father’s lack of parental responsibility under the Spanish order, the substantiated concerns about domestic abuse, the harm to the child’s relationships with his mother and maternal family, and unanswered concerns raised by his London lifestyle. Those issues required proper welfare determination in the appropriate forum.

5. The Convention policy considerations carried considerable weight. They extend beyond prompt return to deterring unilateral retention, preventing a parent from gaining an advantage through abduction, and enabling factual and welfare disputes to be decided in the child’s habitual-residence State. This retention was the type of unilateral action which the Convention is designed to deter.

6. A judicial meeting with a child is not for gathering evidence. The judge should not have used the meeting to reach an evidential conclusion about the child’s national identity. Particular caution is required before such meetings in summary Convention proceedings. The fact that the Convention ceases to apply at 16 did not justify giving weight to the prospect that the child might soon act unilaterally, since the inherent jurisdiction remained available.

7. Balancing the factors afresh, the welfare and Convention considerations substantially outweighed the consequences of a return contrary to the child’s wishes. A summary return order to Romania was made.

• Court of Appeal (Civil Division): Allowed the mother’s appeal and made a summary return order under the 1980 Hague Child Abduction Convention: [2024] EWCA Civ 1569.
• High Court of Justice, Family Division: On 8 August 2024, a Deputy High Court Judge dismissed the mother’s application for a summary return order in the exercise of the Article 13 discretion.