In K (a child) (Hague Convention: child’s objections)  EWCA Civ 1364, a judgment which came out today, the Court of Appeal upheld an earlier decision by High Court Judge Clifford Bellamy, sitting in the Family Division, not to return a child from the UK to Lithuania under the Hague Convention. The Court of Appeal is, in general, the second highest domestic appellate court. The case shows that a return can be prevented by the objections of a child even where those objections are based on developments after the abduction complained of took place.
The child concerned, aged just under 11 at the time of the original judge’s decision, had lived in Lithuania with both parents from birth until the summer of 2013. On 25 July 2013, mother and child ‘visited’ the UK, with the agreement of the father. They did not return. The parties accepted that the facts as described amounted to a ‘wrongful retention’ for Hague Convention purposes. The Central Authority in Lithuania made a request for the child’s return, prompting the High Court proceedings in the UK to decide the issue.
After the child and mother were located in the UK, a hearing was arranged. The fact that they had to be located in the first place does not seem to sit well with the mother’s position at court that she had no objection to the child having contact with the father. The delay in the matter being heard was because of problems with the mother obtaining legal aid – in the end, it seems that she did not get it (at least not for the hearing itself) and she was represented pro bono. It is not clear whether the father, the aggrieved party, was in receipt of legal aid or not. He probably wasn’t, despite the overwhelming importance of the case, although it is not clear from the judgment.
The original judge declined to order the child’s return for the reason that the child herself objected and that she was of a sufficient maturity for her views to be taken into account. He based this on article 13 of the Hague Convention which, insofar as it is relevant, says:
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
Source: English Text of Hague Convention, Hague Conference on Private International Law
The Court of Appeal, when deciding the appeal brought by the father against the original judge’s decision, noted that much turned on the content of the CAFCASS officer’s report. CAFCASS is an organisation that seeks to portray the views of children in contested family proceedings. The CAFCASS officer’s position was that this was a case that might be one of the unusual ones which should not succeed under the Hague Convention owing to the objections of the child. At the same time, however, he expressed concern that the child might have been ‘influenced’. The original judge, without the benefit of oral evidence from anyone other than the CAFCASS officer, concluded that the child’s objection was ‘authentically her own’ and that there was evidence relating to the father’s post-abduction conduct that gave rise to the child being afraid of him and thereby not wanting to return. The original judge concluded that the child’s objection was, in this case, determinative.
In upholding the original judge’s decision not to order a return, the Court of Appeal concluded that it could not be shown that the original judge’s reasoning was inadequate. The father did not seek to challenge the fact that the child objected to returning, nor the conclusion that she had sufficient maturity for that to count. The argument of the decision appealed being inadequately reasoned was based on the way in which the delay in the original hearing taking place. During the period of the delay the child put down roots etc in the UK – this influenced the original judge’s decision even though this delay was no fault of the father and, more importantly, such an approach would, it was said for the father, undermine the whole reason for the Convention’s existence. The Court of Appeal rejected this challenge because (as the lawyer representing the father partly came to realise) existing case law indicated that the degree of integration of a child was something that could be considered and the original judge clearly had in mind the policy behind the Hague Convention. Absent any misdirection as to the actual law, the Court of Appeal was not willing to interfere with the original judge’s exercise of discretion, despite the fact that the original reasons given for it ought to have been ‘spelled out rather more clearly and specifically’.
In cases such as this, irrespective of the area of law involved, when original decision makers direct themselves adequately as to the underlying legal principles and seem to have had in mind all of the relevant evidence, reviewing courts are reluctant to intervene.