Factual and Procedural Background
This opinion concerns an application by the Defendant mother, a British national, for leave to appeal an order made by Mr Justice Singer on 18 January 2007. The order, made under the Hague Convention and the Child Abduction and Custody Act 1985, directed the return of the parties' daughter, born in 1999, to Serbia. The Plaintiff father, a Serbian national, had applied for the child's return due to ongoing substantive custody proceedings in Serbia.
The mother acknowledged that the removal of the child from Serbia was wrongful but resisted her return on grounds including a grave risk of physical or psychological harm under Article 13(b) of the Convention and the child's objections as reported by a CAFCASS Children and Family Reporter. The judge ordered the child's return subject to protective undertakings by the father but did not address the defence based on the child's objections. A stay was subsequently granted to the mother to enable this appeal.
The parties were never married and had lived in Belgrade after moving from Spain. Their relationship ended acrimoniously with allegations of violence and abuse by the father denied by him. Custody was initially awarded to the mother by Serbian authorities with contact rights for the father. The father sought changes to custody citing concerns about the mother's care and alleging a risk of removal of the child from Serbia by the mother.
The mother took the child to England in August 2005, leading the Serbian court to grant provisional custody to the father. Subsequent proceedings in Serbia involved multiple applications and counter-applications concerning custody, contact, harassment allegations, and maintenance. The mother alleged a campaign of harassment and intimidation by the father, including incidents involving the police and planting of drugs in her car, which she attributed to the father. The father denied all allegations and claimed the mother influenced the child against him.
In England, Convention proceedings for the child's return were instituted by the father in November 2006. The child expressed reluctance to see the father and objections to returning to Serbia, citing fear of violence witnessed against the mother and fear of separation from her mother. CAFCASS officers interviewed the child and reported on her fears and objections.
The judge below considered the evidence and refused the mother's application to adduce oral evidence, concluding that issues raised were best resolved by the Serbian courts. The judge found that the Article 13(b) defence was not made out and ordered the child's return subject to undertakings, but did not address the child's objections defence explicitly. This failure forms the basis of the appeal.
Legal Issues Presented
- Whether the judge erred in failing to consider the child's objections to return under Article 13 of the Hague Convention.
- Whether the Article 13(b) defence asserting a grave risk of physical or psychological harm or intolerable situation was established.
- Whether the refusal to admit oral evidence was within the judge's discretion in summary Hague Convention proceedings.
- How the court should exercise its discretion balancing the child's objections against the Convention's objectives and comity with the Serbian courts.
Arguments of the Parties
Appellant's Arguments
- The judge failed to consider the child's objections defence properly, which was supported by largely uncontested evidence.
- The child's objections were founded on real fears of harm and separation, related to a campaign of harassment involving police and drug planting incidents.
- The refusal to admit oral evidence was erroneous as it prevented clarification of critical disputed facts.
- The child's objections, if established, should lead the court to exercise discretion against ordering return.
- The mother's fears and the child's psychological harm justified refusal of return under Article 13(b) and as part of the child's objections defence.
Respondent's Arguments
- The judge properly exercised discretion in refusing oral evidence, given the summary nature of Hague proceedings.
- The Article 13(b) defence was not made out on the evidence.
- The child's objections were likely influenced or coached by the mother, diminishing their weight.
- No reasonable judge could have found the child's objections defence established given the father's findings below.
- If permission to appeal is granted, the appellate court should consider the defence afresh and exercise discretion accordingly.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re W (Abduction: Domestic Violence) [2004] EWCA (Civ) 1366; [2005] 1 FLR 727 |
Discretion to admit oral evidence in summary Hague Convention proceedings only in exceptional cases. |
The court upheld the judge's discretion to refuse oral evidence, given the summary nature and high threshold of defences under the Convention. |
| S v S (Child Abduction)(Child's Views) [1992] 2 FLR 492 |
Framework for considering a child's objections under Article 13 of the Hague Convention, including influence by abducting parent and weighing objections. |
The court applied the principles to find the child's objections valid and requiring consideration in the exercise of discretion. |
| Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192 |
Three-stage test for child's objections: existence of objection, age and maturity, and discretionary balancing. |
The court applied these stages, finding the child mature enough and her objections valid, requiring exercise of discretion against return. |
| Zaffino v Zaffino (Abduction: Children's views) [2006] 1 FLR 410 |
Balancing child's objections against Convention considerations and general welfare. |
The court emphasized balancing objections with comity and policy, supporting refusal of return in exceptional circumstances. |
| Re D (A Child) (Abduction: Rights of Custody) [2006] 3 WLR 989 |
Importance of hearing the child in Hague cases, usually via CAFCASS officer interview. |
The court accepted CAFCASS reports as adequate evidence of the child's views and objections in this case. |
Court's Reasoning and Analysis
The court began by acknowledging the summary nature of Hague Convention proceedings and the high threshold for defences such as Article 13(b) and the child's objections. It affirmed the judge's discretion in refusing oral evidence, given the written affidavits and CAFCASS reports before him.
However, the court found that the judge failed to address the child's objections defence properly. The evidence, particularly the CAFCASS report, demonstrated that the child, aged 8, was mature and intelligent, capable of expressing genuine objections to returning to Serbia based on real experiences and fears, notably the mother's repeated police involvement and alleged harassment campaign.
The court applied established legal principles requiring that a child's objections be assessed in three stages: whether objections exist, the child's age and maturity, and the discretionary balancing of objections against Convention objectives and comity with foreign courts. It found the child's objections valid, mature, and rooted in reality rather than mere influence by the mother.
Balancing the considerations, the court emphasized the exceptional nature of the case, particularly the credible evidence of attempts to incriminate the mother with drugs and the resulting police interventions witnessed by the child. It concluded that these factors created an intolerable situation for the child if returned.
While the judge below had rejected the Article 13(b) defence, the appellate court found that the child's objections defence independently justified refusal of the return order. The court stressed that this decision did not impugn the Serbian family justice system but recognized the limits of its protection against criminal justice risks perceived by the child.
Holding and Implications
The court granted the Defendant mother's application for permission to appeal and allowed the appeal, effectively overturning the order for the child's return to Serbia.
Holding: The appeal is allowed on the ground that the child's objections to return, properly considered and established, justify refusal of an order for immediate return under the Hague Convention.
Implications: The decision directly affects the parties by permitting the child to remain in England pending further proceedings and recognition of the child's objections as a significant defence. No new precedent altering the framework of Hague Convention defences was established; rather, the court applied existing principles to the exceptional facts of this case.