- Bookmark
- Share
- CaseIQ
F (Children), Re
Factual and Procedural Background
The proceedings concern three children, referred to as L (born April 2002), F (born July 2009), and G (born January 2012), and their Hungarian parents. Following the breakdown of the parents' marriage and ongoing proceedings in the Hungarian courts, the mother unlawfully removed the children to the United Kingdom. The father initiated Hague Convention proceedings in the Family Division on 23 November 2015, seeking the return of the children to Hungary. The mother defended on grounds that L and F objected to return under Article 13, and that return would expose the children to grave risk of harm under Article 13(b).
After a pre-trial review on 20 January 2016, an application for separate representation for L was refused. The final hearing occurred on 2 February 2016 before a Deputy Judge, who heard evidence including reports and oral testimony from a CAFCASS officer. The Deputy Judge rejected the grave risk defence, found that L and F objected to return but exercised discretion to order their return by 19 February 2016.
The mother and L sought permission to appeal the Deputy Judge’s order. Permission was granted by Black LJ on 26 February 2016, and the appeals were heard on 26 May 2016. Additional evidence from L’s litigation friend and updated material from the father regarding Hungarian proceedings were admitted. Judgment was reserved.
Legal Issues Presented
- Whether the Deputy Judge misdirected himself by stating his discretion was "to some extent already tied" in a Hague Convention summary return proceeding, thereby improperly fettering his discretion.
- Whether the Deputy Judge erred in exercising discretion by considering an inadequate and unduly narrow range of factors when ordering the return of the children.
- Whether the procedural handling of L’s participation in the Hague proceedings was fair and consistent with the child’s right to be heard.
Arguments of the Parties
Appellant's Arguments (Mother and L)
- The Deputy Judge misdirected himself by suggesting his discretion was constrained, contrary to established authority that discretion in Hague proceedings is "at large".
- The Deputy Judge failed to consider numerous relevant factors in exercising discretion, including the reasons and strength of the children’s objections, family circumstances, potential influence by the mother, impact of return to previous adverse environment, children’s settled life in England, and L’s maturity and educational needs.
- L’s exclusion from direct participation in the hearing was unfair, depriving the court of vital evidence and impairing the quality of the decision-making process.
- The evidence demonstrated L’s deep integration and happiness in England, the emotional and financial difficulties faced in Hungary, and the negative impact that return would have on her welfare.
Respondent's Arguments (Father)
- The Deputy Judge’s reference to a "summary process" related to the nature of Hague proceedings generally, not to a limitation on his discretion.
- The Deputy Judge’s judgment, read as a whole, shows that all relevant factors were considered appropriately and given suitable weight.
- The appeal does not provide a backdoor to revisit the refusal of permission to appeal the pre-trial decision regarding L’s representation.
- The Deputy Judge’s exercise of discretion was lawful and reasonable; no error of fact or law was demonstrated.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55 | Framework for considering child’s objections under Article 13; discretion in Hague Convention cases. | Deputy Judge applied the principles on child’s maturity, strength and authenticity of objections, and discretion in ordering return. |
| SP v EB and KP [2014] EWHC 3964 (Fam) | Judicial approach to reasons for judgment; no need for exhaustive recitation but sufficient clarity for appeal. | Court noted that the Deputy Judge’s ex tempore judgment was adequate and understood in context. |
| Piglowska v Piglowski [1999] 1 WLR 1360 | Appellate approach to reviewing discretion; avoid narrow textual analysis and substitution of discretion. | Court applied this principle to resist appellant’s attempts at narrow textual criticism of Deputy Judge’s reasoning. |
| Mabon v Mabon [2005] EWCA Civ 634 | Child’s right to be heard and risk of emotional harm from exclusion from proceedings. | Referenced to discuss procedural rights of child in Hague proceedings. |
| In re G (Abduction: Children's Objections) [2010] EWCA Civ 1232 | Practice of judges meeting children; child participation in Hague proceedings. | Used to illustrate evolving practice of child involvement. |
| In re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12 | No presumption against children giving evidence in family proceedings. | Referenced in discussion of child participation and evidential opportunities. |
| In re LC (Children) [2014] UKSC 1 | Child’s right to be joined as party in Hague proceedings. | Discussed in context of child participation rights. |
| In re M and others (Children) (Abduction: Child's Objections) [2015] EWCA Civ 26 | Child’s right to participate and be heard in Hague proceedings; assessment of objections. | Referenced regarding procedural and substantive rights of children objecting to return. |
| In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51 | Obligation to hear children and methods of doing so in Hague cases. | Used to consider procedural safeguards and child’s participation. |
| In re KP (A Child) (Abduction: Rights of Custody) [2014] EWCA Civ 554 | Importance of judge meeting the child and understanding child’s views. | Supported discussion on evolving practice of child participation in proceedings. |
Court's Reasoning and Analysis
The court carefully examined the Deputy Judge’s judgment as a whole, rejecting the appellants’ narrow textual analysis that suggested a misdirection or improper fettering of discretion. The phrase "summary process" was understood as a reference to the nature of Hague proceedings, not a limitation on the judge’s discretion, which was exercised "at large" and with proper regard to all relevant factors.
The court found that the Deputy Judge had comprehensively considered the children’s objections, their maturity, the family circumstances, the Hungarian court’s protective capacity, and the father’s undertakings. The judge acknowledged the pain the order would cause the mother and children but was satisfied that return was appropriate under the Hague Convention framework.
Regarding procedural fairness, the court noted the evolving jurisprudence emphasizing the child’s right to be heard and participate. While L was not separately represented or joined as a party, the court accepted that all relevant material, including additional evidence from L’s litigation friend, was before the court on appeal. Any procedural shortcomings did not undermine the substantive correctness of the Deputy Judge’s decision.
The appellate court applied established principles cautioning against over-technical scrutiny of judicial reasoning and affirmed that the Deputy Judge knew which factors to consider and applied the law correctly.
Holding and Implications
The court DISMISSED both appeals, upholding the order for the return of the children to Hungary.
The direct effect is that the children are to be returned pursuant to the Hague Convention order, with additional undertakings by the father to ensure cooperation and stay of interim custody orders pending final judgment in Hungary. No new legal precedent was established; rather, the decision affirms proper application of existing Hague Convention principles and procedural safeguards concerning child participation.
Alert