P & Anor v S v Anor

In proceedings concerning the return of a child retained abroad, the appropriate procedural route may depend on the circumstances and the passage of time. A domestic summary return order under the Children Act 1989 may be appropriate initially, but a later application under the Hague Convention 1980 may provide the more effective and expeditious route. Article 13 does not create an absolute defence: a child’s objections open a discretion as to return. The child’s wishes and feelings remain relevant under either scheme. Permission to appeal may properly be confined to grounds raising a real prospect that continuing domestic proceedings are inappropriate or ineffective while Convention proceedings are pursued abroad.

The mother and the separately represented child, aged 14½, sought permission to appeal an order made by HHJ Cole in the Worcester Family Court on 5 November 2024. The order included a further direction for the child’s return from Slovakia under the Children Act 1989, following an earlier return order which had not been complied with.

The proposed appellants argued that proceedings should instead be brought in Slovakia under the Hague Convention 1980, where the child’s objections could be considered. They also challenged the weight given to the child’s wishes and feelings and raised an allocation issue. The central questions were whether the domestic proceedings remained useful and proper, and whether the proposed grounds had a real prospect of success.

1. Permission. Permission to appeal was granted on the mother’s grounds concerning the improper use of proceedings under the Children Act 1989 instead of the Hague Convention 1980, and the practicalities of enforcing the return order. Those issues were also substantially raised in the child’s grounds. Permission was refused on the remaining grounds.
2. The appropriateness of a domestic summary return order depends on the circumstances at the relevant time. An order made when the retention was recent, a return hearing was imminent and both parents were before the court could have been justified. The failure to comply with that order, the child’s continuing presence in Slovakia and his separate representation materially altered the position.
3. Following the approach identified by Moylan LJ in Re S (Abduction: Hague Convention or BIIa) [2018] EWCA Civ 1226, a Hague Convention application in the requested state may offer practical advantages, including direct assistance from local authorities, a six-week determination obligation and tailored procedures for non-return and enforcement. In the circumstances, that route was likely to be more effective and expeditious.
4. Article 13 of the Hague Convention 1980 does not provide an absolute defence. A child’s objections merely open a discretion concerning return. The child’s wishes and feelings are relevant under both the Convention and the domestic statutory scheme.
5. The challenge based on the weight given to the child’s views had no real prospect of success. Although the lower court’s reasons were brief, it had undertaken the necessary balancing exercise, considered the risk of harm and expressly gave the child’s wishes and feelings significant weight. The allocation issue was neither sufficient nor proportionate, and required reconsideration after the appellate proceedings.
6. The earlier return order remained stayed. The appeal was to be listed urgently, although a full hearing might become unnecessary if Hague Convention proceedings were promptly commenced in Slovakia.

• High Court (Family Division): Permission to appeal the order of HHJ Cole dated 5 November 2024 was granted on limited grounds. The earlier return order remained stayed pending determination of the appeal.
• Worcester Family Court: HHJ Cole made a further return order on 5 November 2024 under the Children Act 1989, following an earlier order dated 4 October 2024.