Factual and Procedural Background
This is an appeal by a mother against an order made by Judge Hogg on 12 March 2015 directing that her 11-year-old daughter be returned to Lithuania pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the 1980 Hague Convention"). The respondent to the appeal is the father of the child.
Before Judge Hogg, the mother accepted wrongful retention of the child in this country but argued exceptions under Article 13 of the 1980 Hague Convention. She claimed the child objected to return and had sufficient maturity for her views to be considered, and that there was a grave risk of physical or psychological harm or an intolerable situation if returned (Article 13b). The father accepted the child's objection and maturity but disputed the grave risk claim.
The judge heard oral evidence only from a CAFCASS officer who interviewed the child regarding her views and maturity. No other oral evidence was given. Both parties submitted documentary evidence, including police reports related to a significant incident in August 2014 and a social worker's assessment report from September 2014.
The mother initially refused to return with the child if return was ordered but later indicated willingness to accompany her.
The family is Lithuanian. The mother has three children, including the child in question and a daughter living in England. The father has a separate child in Lithuania. The parents were never married but had a long relationship marked by serious allegations by the mother against the father, including past violence and criminal convictions.
The child lived with the father in Lithuania from late 2011 until the mother moved to England in 2012. In 2014, the child visited the mother in England for summer holidays. On 24 August 2014, a disputed and violent incident occurred at the mother's flat involving the father attempting to take the child back to Lithuania, resulting in police intervention and injuries.
The social worker's assessment described the child as emotionally affected by the incident and tearful. The CAFCASS officer's evidence included the child's statements expressing fear of the father, influenced by information from the mother and sister, and her objection to returning to Lithuania.
Judge Hogg critically evaluated the CAFCASS officer's evidence and the child's objections, concluding that although the child objected, her views were influenced by the mother and not entirely genuine. The judge rejected the grave risk claim under Article 13b, finding insufficient evidence to support it, and ordered the child's return to Lithuania.
Legal Issues Presented
- Whether the judge erred in her treatment of the child's objection to return under Article 13 of the 1980 Hague Convention.
- Whether the judge correctly applied the exception under Article 13b regarding grave risk of harm upon return.
- Whether procedural irregularities or misapplication of evidence occurred in the handling of CAFCASS officer's testimony.
Arguments of the Parties
Appellant's Arguments
- The judge failed to apply the proper legal test concerning the child's objections and did not give appropriate weight to relevant authorities, including two Re M cases.
- The judge improperly discounted the CAFCASS officer's evidence without adequate explanation.
- There were procedural irregularities, including alleged "cherry picking" of evidence and the CAFCASS officer being distracted during testimony.
- The judge wrongly rejected the Article 13b grave risk exception without following the test from Re E, failing to consider protective measures in Lithuania.
Respondent's Arguments
- The father accepted the child's objection and maturity but contested the grave risk claim under Article 13b.
- The judge was entitled to critically evaluate and weigh the CAFCASS officer's evidence and the child's objections.
- Procedural conduct and evidential handling were proper and consistent with the summary nature of Hague Convention proceedings.
- The judge's rejection of the Article 13b claim was supported by the evidence and consistent with established legal principles.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55; [2008] 1 AC 1288 |
Legal framework for assessing child's objections under Article 13. |
Recognized as relevant authorities; judge was considered to have had them in mind despite not citing them explicitly. |
| Re M (Republic of Ireland) (Child's objections) [2015] EWCA Civ 26 |
Further guidance on child's objections exception. |
Accepted as relevant; no failure found in judge's consideration of this authority. |
| Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144 |
Test for grave risk under Article 13b and consideration of protective measures. |
Judge applied the principles correctly, rejecting grave risk claim based on evidence. |
| Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10; [2012] 2 AC 257 |
Supreme Court guidance on assessing grave risk and discretion under Article 13b. |
Judge's judgment on grave risk was within her discretion and supported by evidence. |
| Re KP (Abduction: Child's Objections) [2014] EWCA 554; [2014] 1 WLR 4326 |
Role of court in evaluating child's objections and CAFCASS evidence. |
Court clarified that judge is not bound by CAFCASS officer's views but must give reasons for differing; judge complied with this. |
Court's Reasoning and Analysis
The court carefully reviewed the judge's handling of the child's objections and the Article 13b grave risk claim. It found that the judge properly acknowledged the child's objection and maturity, satisfying the gateway for the child's objections exception under Article 13. The judge then exercised her discretion appropriately by critically evaluating the evidence, particularly the CAFCASS officer's report and testimony, and weighing the influence of the mother and others on the child's views.
The judge was justified in being cautious about the CAFCASS officer's evidence where he expressed a particular view of the August 2014 incident, given the lack of definitive findings about that event. The judge's approach to the factual disputes was consistent with the summary nature of Hague Convention proceedings, where extensive factual determinations are generally avoided.
The court rejected the appellant's argument that the judge failed to consider relevant legal authorities or improperly concentrated on influence to the exclusion of other factors. The judge considered a wide range of relevant matters, including the child's current psychological state, contact arrangements, the child's background and nationality, and the likelihood of protective measures in Lithuania.
Regarding the Article 13b grave risk exception, the court found the judge's rejection was supported by the evidence and legal standards. The mother failed to substantiate the grave risk claim, and the judge correctly concluded that protective measures were not required to be explored further given the evidence. The judge's discretion in this regard was not shown to be erroneous.
The court also found no procedural irregularity in the conduct of the hearing or in the treatment of the CAFCASS officer's evidence. The judge's questions were appropriate, and the officer had the opportunity to clarify his evidence despite time pressures.
Holding and Implications
The court DISMISSED THE APPEAL, upholding the order that the child be returned to Lithuania forthwith under Article 12 of the 1980 Hague Convention.
The direct effect is that the child must be returned to Lithuania as ordered. The court did not establish any new legal precedent but reaffirmed established principles regarding the assessment of a child's objections and grave risk under the Hague Convention. The case underscores the importance of judicial discretion and the summary nature of Hague proceedings in resolving factual disputes and weighing evidence.
The court also directed that the management of the child's return, including timing and arrangements, be returned to Judge Hogg or another Family Division judge if she is unavailable.