Summary of Court of Appeal Opinion

Factual and Procedural Background

This is an appeal from a decision of Judge Humphreys delivered on 12 December 2025 ordering the return of a child (hereafter "Child") to The State under the Hague Convention incorporated by the Child Abduction and Custody Act 1985. The Defendant/Appellant brought the appeal to this Court of Appeal. The Defendant/Appellant initially proceeded as a personal litigant, attended case management on 16 December 2025 and later obtained legal representation. The trial judge found that the Child was habitually resident in The State and that the Child had been wrongfully removed to The Province on 2 August 2025. The District Court in The State (where the mother had previously issued proceedings) remained seised of welfare proceedings. The Official Solicitor represented the Child's interests and also provided the limited expressed wishes of the Child's older half-sibling (hereafter "Sibling").

Legal Issues Presented

1. Whether a return order under article 12 of the Hague Convention should be made for the Child, or whether an exception under article 13(b) applies because return would expose the Child to a grave risk of physical or psychological harm or otherwise place the Child in an intolerable situation.
2. Whether the trial judge erred on appeal by failing to analyse the grave-risk factors holistically and/or by impermissibly taking welfare considerations as determinative in Hague proceedings.

Arguments of the Parties

Appellant's Arguments

• The trial judge did not properly analyse the factors supporting a grave-risk case in a holistic way.
• The judge failed to take into account welfare considerations in his analysis, such that the decision should be overturned on appeal.
• The appellant relied on authorities to emphasise the need for welfare-linked evaluation (including sibling separation and the impact of the father's pending criminal trial).

Respondent's Arguments

• The Child was habitually resident in The State and the return order was required by article 12 unless an article 13 exception was made out.
• There was no established grave risk: the father's pending criminal trial was speculative; sibling separation did not meet the grave-risk threshold; and practical housing difficulties did not establish intolerable risk.

Official Solicitor / Child's Position

• The Official Solicitor reported that the Child expressed a clear preference to live in The State and missed school, siblings and friends there.
• The Sibling expressed a wish to remain in The Province and uncertainty about moving.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal applied the established Convention framework and appellate standard. Key steps in the court's analysis included:

• Confirmed habitual residence: the Child was habitually resident in The State in August 2025 and was wrongfully removed to The Province on 2 August 2025, engaging article 12.
• Appellate standard: the appeal required demonstration that the trial judge erred in law, misapplied principle, or reached an untenable conclusion on the evidence; a rehearing was not appropriate.
• Assessment of father's pending criminal trial: treated as speculative; no vouched evidence that it created a grave risk of psychological harm or intolerable situation; trial scheduling and lack of child-specific evidence weighed against finding grave risk.
• Sibling separation: considered authorities (Re K and C v M) but distinguished them; found family dynamics involved cross-border movement over time and that separation concerns did not meet the grave-risk threshold in the summary Hague context.
• Practical/housing difficulties: acknowledged practical difficulties but concluded they did not amount to a grave risk; practical interim measures and the District Court in The State could address urgent arrangements.
• Child's wishes: the Official Solicitor reported that the Child wished to return to The State, which the court considered relevant but not determinative absent a finding that the Child's objection met the article 13 threshold.
• Holistic assessment and welfare: the court found the trial judge had engaged in a holistic assessment within discretion and had not improperly substituted a welfare determination contrary to article 16.

Holding and Implications

THE APPEAL IS DISMISSED; THE RETURN ORDER IS AFFIRMED.

Direct consequences:

• The return order requiring the Child's return to The State is affirmed.
• The Court retained a short stay until 4pm on 17 January 2026 to permit completion of the school week and to allow the parties to seek interim arrangements before the District Court in The State; disclosure of relevant papers to that court was authorised.
• No order as to costs was made against the Appellant in these children's proceedings.

Broader implications:

The decision applies established Hague Convention principles and appellate constraints; the court emphasised that summary return proceedings are for determining jurisdiction and that welfare inquiries are limited by article 16. The opinion did not purport to create new precedent beyond its application and distinctions of existing authorities.