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Z v Z [2005] EWCA Civ 1012

Appeal against Judge's exercise of discretion to refuse a return order. Appeal allowed.

B4/2005/1273

Neutral Citation Number: [2005] EWCA Civ 1012

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

PRINCIPAL REGISTRY OF THE FAMILY DIVISION

(MR JUSTICE MUNBY)

Royal Courts of Justice

Strand

London, WC2A 2LL

Thursday, 23 June 2005

B E F O R E:

LORD JUSTICE THORPE

LORD JUSTICE WALL

LORD JUSTICE NEUBERGER

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NAZZARENO Z

Appellant

-v-

DONNA SUZANNE Z

Respondent

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(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

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MR J ROSENBLATT (instructed by Mischon de Reya, London) appeared on behalf of the Appellant

MR VALENTINE LE GRICE QC (instructed by Cobbetts, Manchester) appeared on behalf of the Respondent

- - - - - - -

J U D G M E N T

(Approved by the Court)

- - - - - - -

Crown Copyright©

1. LORD JUSTICE THORPE: This appeal concerns to some extent all of the six children of the parties, that is to say the appellant father, Nazzareno Z and the respondent mother, Donna Suzanne Z. The children are respectively Paolo, born on 25 August 1990; Melissa, born on 28 April 1992; Adriano, born on 19 November 1993; Juliano, born on 16 June 1995; Marco, born on 9 September 1997; and Isabella, born on 16 December 1999. So the age range of the children is from 14 at the top to five at the bottom. I will condense the history, essentially adopting the summary offered by Mr Rosenblatt (who appears for the father) in his skeleton argument.

2. The parents married in 1989 and in 2004 there seems to be no doubt that the mother spent periods in this jurisdiction exploring the possibility of moving here from Canada. During those visits she formed a relationship with a man with whom she still co-habits. She returned from England and left the children with the father whilst she made a trip to Cuba. On her return, she initiated the final separation by leaving the matrimonial home with Melissa, Juliano and Marco. She initiated proceedings in the Superior Court of Justice, Ontario, essentially applying to that court for permission to relocate to this jurisdiction with the four youngest children. There were directions orders in that court in October and November, to which I will return. However, before any determination, the mother wrongfully removed the children to this jurisdiction on 21 April. In fairness to her, it can be said that she did not resort to any particular subterfuge, nor did she endeavour to conceal her whereabouts. She informed the father that she had removed them, on the following day, 22 April. It can also be said in mitigation of her wrongdoing that during the course of without prejudice exchanges between the parties in March 2005 the father had offered the concession that Melissa should make her future with her mother in this jurisdiction.

3. The application for return under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction was swiftly initiated and swiftly processed in this jurisdiction to a final hearing on 26 May 2005. The application was supported by a formal statement by the solicitor instructed by our central authority exhibiting the Canadian orders. A narrative affidavit from the mother was filed with leave on the eve of the trial, and therefore there was no evidence from the father himself. The only oral evidence was that of Mrs Raleigh, the CAFCASS officer, who had interviewed two of the children, namely Melissa and Juliano, in the light of the mother's defence raised under Article 13 of the Convention to the effect that those two children objected to being returned and had attained an age and degree of maturity at which it was appropriate for the court to take account of their views. We have a transcript of the evidence of Mrs Raleigh, and it does not seem to me that it is of any particular significance that her assessment was given to the judge orally. Had time allowed, no doubt she would have reduced her assessments to writing and it would have been the final piece of written evidence before the judge.

4. The case was listed at 10.30. It was of course a summary trial. The judge conducted the proceedings with proper dispatch: the submissions were concluded by the lunch adjournment and at 2.00 Mumby J delivered a characteristically full and lucid judgment.

5. The mother in the court below was represented by Mr Michael Nicholls, who has of course enormous experience in this field. He readily conceded that there could be no defence to the application for an order for the summary return of both Marco and Isabella. He presented the mother's case in opposition only in relation to Juliano and Melissa, and he relied only on the provisions of Article 13 that I have already cited, provisions which, if substantiated allow the judge to exercise a discretion as to whether or not to grant the order for return.

6. In his extempore judgment Mumby J reviewed the law, concluded on the basis of Mrs Raleigh's evidence that the objections of both children were made good, having regard to their respective ages and degrees of maturity. As he put it, that finding opened the gate to the exercise of his discretion. In each case he exercised the discretion to refuse the return order. His conclusion in respect of Melissa was categoric. In relation to Juliano he was less sure, and expressed his final conclusion as he said, with hesitation. He then refused Mr Rosenblatt's application for permission to appeal, an application which was renewed on 9 June. That was swiftly referred to me and on 14 June I ordered an oral hearing of the permission application with appeal to follow if permission granted, fixed for 22 June. I identify those dates simply to illustrate that in this court, in this jurisdiction, great priority is given to any appeal in a Hague Convention case. The obligation to conclude the appellate process within six weeks is clear, and in many cases (of which this is an instance) the appeal is determined within a matter of a week or two.

7. Mr Rosenblatt in his skeleton argument identified the kernel of his appeal. He conceded that the judge was entitled to find that in relation to each child their views were of such a nature, having regard to their age and degree of maturity, that they must be taken into account. He simply said that, in the exercise of the resultant discretion, the judge was plainly wrong for a number of reasons. First, he said that the judge had given insufficient weight to the spirit and purpose of the Convention and to the forum conveniens claim of the Superior Court of Ontario. Secondly, he said that the judge had given insufficient weight to the consideration that the abducting parent should not be permitted to create a situation which makes it possible to raise an Article 13 defence. Third, he said that, in ignoring the spirit of the Convention, the judge was plainly wrong in the present case, given the existence of six children, the litigation regarding all six, the possibility of cross-applications, and the priority that should be given to the well-advanced proceedings in the Canadian jurisdiction.

8. Mr Valentine Le Grice QC in his skeleton argument of 21 June essentially resisted this assault on the exercise of the discretion and sought to uphold the judge on the conventional basis that he had carefully and fully considered all relevant factors and that his discretion was not therefore to be impugned.

9. During the course of argument, the court offered Mr Rosenblatt some additional submissions. I will list those shortly: first, that the judge nowhere alluded to the nature of the mother's application in Ontario, namely an application to relocate to England and Wales with the four youngest children. We do not have the application itself, but in the affidavit in support of the originating summons the deponent stated that that was the nature of the mother's application and in her own affidavit in response at paragraph 26 the mother conceded that point.

10. The first directions order made by Justice Van Melle on 19 October 2004 appointed a children's lawyer to "provide such services as he deems appropriate for the minor children": then the six children were identified. In her later order of 16 November Justice Van Melle made a range of provisions - some by consent, some not by consent - to regulate a variety of issues in the interim, including the sharing of the children between mother and father and issues of financial support. So that is how things stood at the end of 2004, and the progress of the proceedings in the spring of 2005 is not revealed by the evidence. However we do know from the mother's affidavit that in January 2005 she conceived the belief that Miss Nichol, the lawyer appointed to represent the children, was heavily prejudiced against her as a mother, and perhaps consequently against her application for permission to relocate. She says in paragraph 32 that by mid-February she believed that Miss Nichol was having private conversations with the father's attorney, both about her and about her case, without her own attorney being informed of what was happening. It seems to me reasonable to infer that those considerations made a significant contribution to the mother's seemingly impetuous decision to take flight. That inference is certainly not displaced by her explanation given at paragraph 37, where she only says:

"The reason why I removed the children was because I was concerned about the past incidents, fear of future harm (emotional and/or physical), lack of financial support and ability to work."

This was therefore the plainest case of a parent diverting from the essential application to the court for permission to relocate in order to achieve her desired goal by unlawful means. Cases in which the court of the requested state then by order validates such contact must be exceptional indeed.

11. Second, did the judge not essentially reason his return of Juliano on the ground that he should not be separated from Melissa, whose return the judge had already refused? Paragraph 47 of the judgment below is in these terms:

"Those are important differences between the two cases. There is, however, as it seems to me another factor which in Juliano's case has to be fed into the balance, arising out of the decision which I have already made in relation to Melissa. Juliano, like Melissa, if he is permitted to remain in this country, will face separation, at least in the short-term, not merely from the two older siblings who are already in Canada but from the two younger siblings who are going to have to return to Canada. In that sense, he is in the same position as Melissa. But if he is returned to Canada he will also suffer a separation from Melissa because, irrespective of whatever happens to Juliano, the defence in relation to Melissa is made out and she will remain here. As it seems to me, that is a factor, although I emphasise only a factor, which can properly be taken into account and which, in my judgment, should in this particular case be taken into account in conducting the relevant balancing exercise in relation to Juliano."

Had the judge granted first the application for Juliano's return, might he not then have ordered Melissa's return to avoid her isolation here?

12. Third, did the judge sufficiently focus on welfare considerations in the context of the variety of possible permutations? Thus the return of the two younger children was conceded on the basis that the mother would go with them. What then would happen to the two older children? In her affidavit the mother suggested that they would be in the care of her cohabitee, but his capacity was completely unexplained in her evidence and unexplored by the judge.

13. The fourth point emerged when we asked to see the judgment of Ward LJ in Re T [2000] 2 FLR 192. At the trial this was agreed at the Bar to be the locus classicus on the proper exercise of the court's discretion once the children's objections had been substantiated. Mumby J dealt with this question in his judgment in paragraphs 22 to 24 in these terms:

"22. I turn, therefore, in relation to Melissa to the question of how I should exercise my discretion. I need not read out the passage in full but Ward LJ in Re T at page 212 referred to and, on page 213, applied the approach earlier laid down by Millet LJ, with the agreement of Sir Ralph Gibson, in Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 at page 734. Millet LJ (as he then was) there expressed the view that where the child is of sufficient age and maturity for his views to be taken into account: 'The Convention clearly envisages that he will not' - that word is emphasised in the original - 'be returned against his wishes, unless there are countervailing factors which require his wishes to be overridden.' That is reflected in the observation made by Ward LJ in Re T at page 203, where he identified the purpose of this exception to the general rule of immediate return as being 'to defer to the wishes of the child for Convention purposes, even if the child's wishes may not prevail if welfare were the paramount consideration.'

23. In Re T itself, at page 213, Ward LJ then went on to identify the particular factors which in that case were to be placed in the balance against refusing to order the return of the child. I put it that way because, as it seems to me, there is a typographical error in the printing of the judgment, and where at page 213A the words 'are to be placed in the balance against return are' appear, they more correctly make sense if they are read as 'are to be placed in the balance against refusing a return are'. The factors in that case which Ward LJ was invited to take into account in the balancing exercise under Article 13 were: the spirit and purpose of the Convention being to leave it to the courts of habitual residence to resolve the parental dispute, the issue of forum conveniens, the consideration that the abducting parent should not be permitted to create the situation which makes it possible to raise an Article 13 defence, and various other matters. I note, although this, of course, is only illustrative, not determinative, because every case must be decided upon its own facts and upon a careful evaluation of balancing the particular factors in the particular case, that, in that case, none of those factors, either individually or collectively, sufficed to override the expressed wishes of the 11-year old child in that case that she should not be returned to Spain.

24. The Lord Justice's approach - and for practical purposes the judgment of Ward LJ was the judgment of the Court of Appeal - is identified in the passage on page 213 where he says:

'In the last analysis, the balance is between allowing the girl her Art 13 defence or enforcing the spirit of the Convention despite the Art 13 defence. In my judgment, the demands of comity, convenience and even the welfare of the child in having her future decided in the court of her habitual residence, do not override the respect which should be paid to her wishes in this particular case.'

That seems to me to indicate, consistently with the early judgment of Millet LJ, the approach which I have to adopt. I have to balance Melissa's wishes and feelings, her objections under Article 13, against what, as Ward LJ described it, is the enforcement of the spirit of the Convention."

14. However, the reading of the judgment of Ward LJ in Re T shows that he had in fact had little to say on the principles. Under the sub-heading "The exercise of Discretion" he said:

"That there is a discretion is plain from the Article itself which provides that notwithstanding the provisions of Art 12 which require in mandatory terms that the child wrongfully abducted be returned, the court 'may also refuse to order the return' if there is a valid objection by the child. In Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716, 734, Millet LJ said, and this seems to be with the agreement of Sir Ralph Gibson:

'It is to be observed that, if a child is not of an age and degree of maturity which makes it appropriate to take his views into account, he must be returned despite his objections and without any further inquiry whether his return is in his best interests. If, on the other hand, he is of sufficient age and maturity for his views to be taken into account, the Convention clearly envisages that he will not be returned against his wishes, unless there are countervailing factors which require his wishes to be overridden.'

I am inclined to agree with that observation and it may not be necessary to express a definitive conclusion about it."

He then went on to consider those factors in the context of the appeal then before the court.

15. Thus it seems to me plain that Ward LJ was simply drawing attention to a passage from the judgment of Millet LJ in Re R and declining to express more than tentative support for the proposition.

16. It is therefore necessary to return to the earlier case of Re R for a fuller appraisal. The three members of the court were Balcombe, Millet LJJ and Sir Ralph Gibson. Not surprisingly, the leading judgment was given by Balcombe LJ who, throughout, had been particularly expert in his understanding and application of the Convention. On this point he had this to say:

"In exercising that discretion, it is clear that the policy of the Convention and its faithful implementation by the courts of the countries which have adopted it, should always be a very weighty factor to be brought into the scales, whereas the weight to be attached to the objections of the child or children will clearly vary with their age and maturity. The older the child, the greater the weight; and the younger the child, the less weight. If support be needed for that very obvious conclusion, it is to be found in the judgment of the Master of the Rolls in Re S (A Minor)(Independent Representation) [1993] Fam 263, [1993] 2 FLR 437.

For present purposes, I do not find it necessary to decide whether under Art 13, once the court has considered it appropriate to take the child's objections into account, it may also take into account other matters beside the policy of the Convention in the exercise of its discretion in deciding whether to refuse to return the child. The combination of Arts 13 and 18 suggests to me that it may well do so. Nevertheless, in this case, there is no evidence of any other matter relevant to the welfare of these children which is suggested as being relevant for our consideration so that the only relevant factors are the policy of the Convention and the children's objections.

To that exercise, there can, in my view, be only one answer. Were it not for the boys' objections, this would be the clearest possible case for the application of the Convention. I need not recount the history which I have already mentioned, but refer in particular to the provisions of the 'Joint Parenting Agreement', the fact of the mother leaving and the fact that all this has arisen upon the occasion of the first visitation under the 'Joint Parenting Agreement'.

To allow the mother's actions in this case, in reliance on the boys' objections, to be upheld, would be to approbate just that sort of conduct which the Convention was intended to prevent. It is sometimes said that the Convention was to prevent the wrongful abduction of children. It also applies expressly to the wrongful retention of children after an authorised visit. The purposes of that are fairly clear. When parents separate and they are living in different countries, it is in the highest degree important for the welfare of the children generally that the custodial parent in one country, whether the father or the mother, can send the children for visitation, access or contact (whatever it be called it embodies the same concept) to the non-custodial parent in the confident belief that at the end of that period the children will return pursuant to any agreement or order of the court which already exists.

It is just as detrimental to the welfare of children generally that that confidence should be maintained as to prevent them from being abducted, because if a custodial parent fears that a child may not be returned pursuant to existing orders or agreements at the end of a visitation period, they will be reluctant to send the children for access and that must be to the detriment of children generally. That seems to me the clear social policy behind the Convention, which it is the duty of our courts to implement."

In the following judgment Millet LJ had not much to say about the principle, other than the paragraph cited by Ward LJ that we have already visited.

17. It is important then, finally, to note that Sir Ralph Gibson in delivering a brief supporting judgment said:

"I agree that this appeal should be allowed, and that the order should be made as proposed by my Lord, Balcombe LJ. I also agree with the reasons for the decision given by my Lords, Balcombe and Millett LJJ, save that, with reference to the boys' objections, I agree with the approach to that issue explained by Balcombe LJ."

So it seems to me that in so far as there was a difference in emphasis between Balcombe and Millet LJJ, Sir Ralph Gibson sides with Balcombe LJ, rather than, as Ward LJ suggested, with Millet LJ.

18. In Re R Balcombe LJ was only reiterating what he had said in the earlier case of S v S (Child Abduction) (Child Objections) [1991] 2 FLR 492. At 501 under the heading "The exercise of the discretion under Article 13, he said:

"(a) The scheme of the Hague Convention is that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they have been wrongfully removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return. That discretion must be exercised in the context of the approach of the Convention - see Re A (Abduction: Custody Rights) [1992] Fam 106 sub nom Re A (Minors) (Abduction: Acquiescence) [1992] 2 FLR 14 at p 28 per Lord Donaldson of Lymington MR.

(b) Thus if the court should come to the conclusion that the child's views have been influenced by some other person, eg the abducting parent, or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views. Any other approach would be to drive a coach and horses through the primary scheme of the Hague Convention. Thus in the case of Layfield in the Family Court of Australia on 6 December 1991, Bell J ordered an 11-year old girl to be returned to the UK because he found that, although she was of an age and degree of maturity for her wishes to be taken into account, he believed that those wishes were not to remain in Australia per se, but to remain with her mother who had wrongfully removed the girl from the UK to Australia. On the other hand, where the court finds that the child or children have valid reasons for their objections to being returned, then it may refuse to order the return."

This citation not only authoritatively states the proper approach but leaves open the question of whether, in making a judgment, the court sets against the proven objections of the child only Convention considerations or Convention consideration plus general welfare factors.

19. Let me then first express my conclusions on the law and the principles. I would unhesitatingly endorse the approach expressed by Balcombe LJ in S v S and in Re R. Millet LJ's formulation does not, in my view, sufficiently mark the weight and importance of Convention factors in the exercise of the proportionate judgment. Second, since the point undoubtedly demands decision in the present appeal, I am persuaded that, in the exercise of the discretion arising under Article 13 (possibly fortified by Article 18), the court must balance the nature and strength of the child's objections against both the Convention considerations (obviously including comity and respect for the judicial processes in the requesting state) and also general welfare considerations. To suggest otherwise seems to me to risk artificiality in judgments in future cases. Mr Le Grice' submission supported this conclusion.

20. It follows, in my judgment, that Mumby LJ unwittingly misdirected himself as to the proper approach and for that reason alone his refusal of return orders for Melissa and Juliano cannot stand. I also consider that he erred in the balance he struck by failing to record the nature of the mother's pending application in Ontario, and thus to identify the danger of approbating her flight from judicial assessment, at least in respect of the older two children. I recognise that this point has less force in the case of Melissa in the light of the father's without prejudice concession in March 2005 that Melissa's future lay in this jurisdiction with her mother.

21. I further consider that paragraph 47 (which I have cited) reveals the judge concluding the outcome for Juliano on the back of his decision to endorse Melissa's removal. It would have been safer for the judge to have started from the concession that the youngest two children were returning with their mother, and then to address Juliano's objections in the light of that formulation.

22. The nature of the children's objections recorded by Mrs Raleigh was of course of fundamental importance to the judge's approach. He was, in my view, fully entitled to conclude on the basis of Mrs Raleigh's report that Melissa was of an age and a degree of maturity at which it was appropriate for the court to take account of her views. Furthermore, it is undoubtedly the case that she expressed herself to Mrs Raleigh forcibly over a wide range of issues. However, it is significant that, when asked to report Melissa's position, she first of all identified Melissa's fundamental difficulty in contemplating any sort of relationship with her father. But then she continued:

"The second reason she objects to going back to Canada, the main reason, is that she wants to be where her mother is and she wants to remain in the same household as her younger sister Isabella, which hadn't been the case in Canada when her father had custody of Isabella and there had been a period of lapse of contact with Isabella which had upset her greatly, so the fact that she is now with her mother and Isabella, she wants to hold on to that situation."

When asked to report on Juliano's position, essentially Mrs Raleigh recorded that he advanced many of the categories of reason that Melissa had advanced. However, it is notable that when Mrs Raleigh asked him to give examples of what had offended him in his father's conduct, she said:

"... a lot of the examples Juliano gave... were really quite minor things."

Later on she said:

"So they were quite mild complaints in the spectrum of complaints about parents."

So, given that that was the state of Mrs Raleigh's assessment, it seems to me that the route chosen by the judge plainly led him to elevate the case in relation to Juliano above its proper level.

23. Mr Rosenblatt has not attacked the judge's conclusion that the Article 13 defence was made good in relation to either child. I am ambivalent as to whether to classify the judge's conclusion in relation to Juliano as a wrongful finding that his express wishes and feelings were sufficient to satisfy the Article 13 test, or whether he reached a wrongful conclusion in the exercise of the resultant discretion.

24. Finally, in my judgment, Mumby J inadequately explored the practicalities. Admitting to the scales welfare considerations, what were the prospects for the older children separated from the rest of the family for an indefinite period?

25. I am aware, as Mr Le Grice reminded us, that the appeal was essentially mounted on the grounds that Canada was seized and that the children should be within that jurisdiction until the merits of the relocation application could be determined: the children had their own lawyer in those proceedings: there should be no risk of competing proceedings. I acknowledge the force of that ground and it was not met, in my judgment, by the mother's offer not to apply to the courts here, for the simple reason that she has no need of our justice system. She would have achieved her goals in relation to Melissa and Juliano were the order below to stand.

26. Mr Le Grice finally suggested that if we were persuaded to allow the appeal we should remit the case for retrial. I see no attraction in that submission. The process is essentially a summary process. All the evidence before the judge was in writing, save only for the almost fortuitous fact that Mrs Raleigh reported orally rather than in writing. We are in just as good a position as the trial judge to make a proper assessment of the Article 13 defence raised by the respondent. I am in no doubt at all that, on a proper exercise of the discretion having due regard to the principles extracted from the judgments of Balcombe LJ, the return orders for Melissa and Juliano should be made, just as they have been made for Marco and Isabella. That is the conclusion of this appeal which I would propose.

27. LORD JUSTICE WALL: I entirely agree that this appeal must be allowed and the judge's order set aside.

28. I think I approach the case in a slightly different direction from that of my Lord, and in those circumstance I propose to give my own judgment, whilst I entirely agree with the analysis which he has put forward.

29. Firstly, and by way of introduction, no one should be surprised at the speed with which these proceedings have moved through the English judicial system. This country prides itself on a proper attempt to implement the intentions of the Hague Convention (to which I will return in just a moment). So an abduction on 21 April 2005 followed by a hearing in the High Court on 26 May 2005 and a hearing in this court before the end of June is entirely appropriate within the time scale of the Convention.

30. I think it necessary, particularly in a case such as this, to bear in the forefront of one's mind the principles underlying the scheme of the Convention. My Lord has already cited from what, speaking for myself, I continue to regard as the leading case on the subject, namely the judgment of this court in Re S [1993] Fam 242 at 251. At the conclusion of his judgment Balcombe LJ, giving the judgment of the court, said this:

"Nothing which we have said in this judgment should detract from the view, which has frequently been expressed and which we repeat, that it is only in exceptional cases under the Hague Convention that the court should refuse to order the immediate return of a child who has been wrongfully removed."

On the facts Re S was such an exceptional case, as was Re T. It is also worthwhile repeating what Balcombe LJ said in the beginning of his section on the exercise of discretion:

"The scheme of the Hague Convention is that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they have been wrongfully removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return. That discretion must be exercised in the context of the approach of the Convention."

The learned Lord Justice then referred back to the judgment of the then Master of the Rolls, Lord Donaldson of Lymington MR in Re A (Minors)(Abduction: Custody Rights) [1992] 106, in which the Master of the Rolls himself laid down the guidelines thus:

"In the comparatively rare case in which such a judicial discretion falls to be exercised, there will be two distinct and wholly different issues confronting the court. (1) In all the circumstances is it more appropriate that a court of the country to which the child has been wrongfully removed or in which it is being wrongfully retained (country B) should reach decisions and make orders with a view to its welfare or is it more appropriate that this should be done by a court of the country from which it was removed or to which its return has been wrongfully prevented (country A)? (2) If, but only if, the answer to the first question is that the court of country B is the more appropriate court, should that court give any consideration whatsoever to what further orders should be made other than for the immediate return of the child to country A and for ensuring its welfare pending the resumption or assumption of jurisdiction by the courts of that country?"

31. It is therefore against that background and with these authorities in mind that I approach this case. One of the points which I have to say strikes me about it is that although there are six children involved - which itself is unusual although the judge was formally only concerned with two of them - it is, in my view, a very straightforward Hague Convention case. I find it difficult to identify anything which is particularly exceptional about it.

32. Against that background, it seems to me that the judge approached his task by recognising, as he had to and as was conceded by Mr Nicholls, that there was no possible Article 13 defence so far as Marco and Isabella were concerned. Inevitably, therefore, they would have to be returned to Canada. That is common ground. Moreover, the order the judge made in relation to them was clearly predicated on the proposition that their mother would go with them.

33. The judge then proceeded to address the Article 13 defence put forward on behalf of Melissa. He decided that she objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her view. The door was thus open to the exercise of a discretion not to order her return. However, the judge then went on to exercise that discretion before he turned to consider the position of Juliano.

34. In my judgment, this was an error. In my judgment, whilst the judge plainly and correctly had to and did consider each child separately in deciding whether or not that child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of his or her views, the exercise of discretion cannot, in my judgment, properly be made by treating each child in isolation. The child's place within the family, and the consequences of the exercise of discretion on that child must be considered. Thus, in my judgment, what the judge should have done first of all was to consider whether or not the gateway to discretion was open in relation to each child. Only if it was could he, in my judgment, then go on to exercise his discretion appropriately.

35. The point is made with particular force, it seems to me, where there are six children in the family, now sadly split between England and Canada. I assume, for present purposes, that the judge was right to find the gateway open to Melissa. Speaking for myself, I have very severe doubts indeed as to whether or not he was right to find that it was open for Juliano. In this case one needs, I think, to examine in perhaps a little more detail than my Lord has done what Mrs Raleigh said about Juliano. As my Lord has indicated, in the passage of her evidence dealing with it, he made a number of complaints, particularly about his father's conduct but, as Mrs Raleigh pointed out, these were really quite minor things. Later on the following page she reported this:

"Like Melissa, he said he didn't want to return to Canada because he would be embroiled in issues which his father would raise and he would be under his father's influence, even if living separately from him. Like Melissa, he had no real perception of how different life might be in England or what preferences he might have about ways of life."

In my judgment, most significantly when, towards the end of her evidence, when I suppose technically being cross-examined by Mr Rosenblatt, he asked:

"And what about Juliano? Does he really have an ascertainable wish? Can I suggest to you he does not really have a clarified ascertainable wish?

Mrs Raleigh's answer was:

"I think he echoes his sister's feeling of not wanting a - being angry with his father and not wanting a relationship for the indefinite future, but the sort of supporting reasons he gives for that, as I said, are very sort of minor - from what he told me, quite minor incidents."

Mr Nicholls then asked one question, and one question only:

"Can I just be clear? Did they all mention to you how they might feel if they stayed but Isabella and Marco had to go back to Canada?"

Mrs Raleigh answered:

"Not directly, but a large part of Melissa's feeling happier here was that she felt more guaranteed to be with her sister. Juliano echoed that but he didn't initiate that as a main reason."

36. In my judgment, I find it difficult to accept that this evidence reaches the Article 13 child objection threshold. It was perhaps unfortunate that Juliano was interviewed by Mrs Raleigh with his sister. But the complaints Juliano made were, as I have already stated, quite minor. Juliano made it plain that he wanted to be with his mother and with his youngest siblings, Marco and Isabella. He had no real perception of how different life might be in England or what preferences he might have about other ways of life. Mrs Raleigh cannot be criticised for not examining with the children how they might feel if they stayed behind whilst Isabella and Marco had to go back to Canada. This was an interview conducted whilst the case was immediately pending, and no doubt her knowledge of it was inevitably, limited. But the evidence she gave about it (which I have already read out) is, in my view, nonetheless significant.

37. In my judgment, therefore, it is highly arguable that the Article 13 defence in relation to Adriano was simply not made out. Accordingly, the discretion to refuse to return him to Canada did not arise.

38. If that conclusion were correct it would, in my view, plainly have a substantial knock-on effect in relation to Melissa. What it would mean, on the facts, is that Melissa would be left alone of the six children in England whilst her mother returned to Canada with Juliano, Marco and Isabella for an indefinite period whilst the Canadian courts decided the welfare issues. We were told that this would mean that Melissa on her own, or Melissa with her brother, would be left with her mother's cohabitee and, possibly, her maternal grandmother, if the latter were to come here from Canada. Since Melissa plainly wanted to be with her mother and Isabella, such a solution is not only manifestly unsatisfactory but when weighed against the scheme of the Convention, it seems to me it would not be a proper exercise of the court's discretion to refuse to order her return, particularly when her fears about her father can plainly be met in the jurisdiction of her habitual residence.

39. Accordingly, in my judgment, had the judge approached the matter in the way I suggest he should have done, it might well have been that he would not have exercised his discretion in favour of returning Melissa.

40. I am, however, acutely conscious that Mr Rosenblatt for the father does not challenge what I may loosely call the threshold criteria in relation to Juliano, and I must therefore consider this appeal and decide it on the basis that I am wrong in my assumption that the threshold criteria in relation to Juliano was not met and that the case falls to be decided purely and simply on the exercise of the judicial discretion. If this is the position, of course G v G applies, and the judge must be seen to be plainly wrong. However, as I said at the outset of this judgment, this does not seem to me in any way an exceptional case. The mother properly invoked the jurisdiction of the Canadian courts in order to relocate to England. The reasons she gives for removing the children to England are not particularly impressive. She did not even begin to mount an Article 13(b) defence or one based on consent or acquiescence. Canada is manifestly the right forum to hear the case. This, in my view, this is a simple straightforward Hague abduction case. When the children's views are placed against the principles of the Convention the latter, in my judgment, outweigh them very substantially.

41. Furthermore, it is significant that the result which the judge predicated is one which the mother herself recognised might well be harmful to the children. In her statement for the proceedings she said:

"42. On the basis that the Court finds that a defence is made out in relation to Melissa's and Juliano's objections to return then my position is that the children, Marco and Isabella should not be returned either. I am very concerned about the effect of splitting the four children up will have on them.

43. It should not be forgotten that Marco has lived primarily with Melissa and Juliano since August 2004. Isabella also resided with these children up until the Plaintiff refused to return her to me following access. The four have a very close relationship."

In my judgment that is a further factor for the exercise of a discretion to order a return.

42. In addition, as I indicated earlier, the exercise of discretion must include a consideration of the consequences of its exercise. The factual situation on the ground, if the judge's order stands, is that two children are left in England with a comparative stranger while their mother takes their siblings back to Canada. In my judgment, in the context of the policy of the Hague Convention, an exercise of discretion which achieved that result is plainly wrong.

43. I would accordingly allow the appeal, set aside the judge's orders and direct the immediate return of all four children to Canada.

44. LORD JUSTICE NEUBERGER: I have reached the same conclusion, albeit possibly by slightly different route.

45. Articles 12 and 13 of the Convention provide:

"12. Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

13. Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

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.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

46. So far as the appropriate approach is concerned, I do not think the judge went wrong in principle, although it would have been better if he had been taken to the authoritative guidance in the judgment of the Court of Appeal given by Balcombe LJ in S v S (Child Abduction) (Child Objections) [1992] 2 FLR 492 at 501B to 502F where the principles are set out, and were later summarised by Ward LJ in Re T (Abduction: Child's Objection to Return) [2000] 2 FLR 192 at 202 to 203.

47. The judge cited as the correct approach the formulation of Millet LJ in Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 734 (not surprisingly as it was cited by Ward LJ in Re T at 212-213) in these terms:

"It is to be observed that, if a child is not of an age and degree of maturity which makes it appropriate to take his views into account, he must be returned despite his objections and without any further inquiry whether his return is in his best interests. If, on the other hand, he is of sufficient age and maturity for his views to be taken into account, the Convention clearly envisages that he will not be returned against his wishes, unless there are countervailing factors which require his wishes to be overwritten."

48. It is perhaps unfortunate that the judge relied on the view of Millet LJ in Re R, because, in his view on the consequence of the child's objection to return, Millet LJ was in the minority. In a passage not cited by Ward LJ in Re T or by Munby J here, Millet LJ said this:

"I am, therefore, inclined to the view that by 'take into account' is meant to 'give effect to in the absence of countervailing factors'. I am not myself persuaded that there is any room for a child who is old and mature enough for his views to be taken into account and yet too young and immature for them to carry any weight - still less to prevail - unless supported by other factors which indicate that his interests would best be served by refusing to order his return. It seems to me that either the child must be old and mature enough for his views to prevail in the absence of countervailing considerations or he is not, and must be returned."

Balcombe LJ took a somewhat different view at 730-731, where he said this:

"In exercising that discretion, it is clear that the policy of the Convention and its faithful implementation by the courts of the countries which have adopted it, should always be a very weighty factor to be brought into the scales, whereas the weight to be attached to the objections of the child or children will clearly vary with their age and maturity. The older the child, the greater the weight; the younger the child, the less the weight."

At 737 a third member of the court, Sir Ralph Gibson, said in terms, as my Lord, Thorpe LJ has pointed out, that he preferred the approach of Balcombe LJ.

49. Even if it was not binding on us, I would follow the majority. The problem with Millet LJ's approach is three-fold. First, it fails, or at least it runs the risk of failing, to give appropriate weight to the principle and purpose of the Convention as embodied in the first paragraph of Article 12. Secondly, it fails to acknowledge that the weight to be given to the child's views must depend on the age and maturity of the child, the strength of the views and reasons for the views. Thirdly, it introduces a presumption into what is expressed in the second paragraph of Article 13 as an unqualified discretion.

50. Nonetheless that part of the formulation of Millett LJ in Re R at 734 which was quoted by Ward LJ in Re T and the judge here is not, to my mind, objectionable, save that it could be said to indicate that where the child's objection to return can be taken into account there is some sort of onus on the party seeking return. In my view that is not correct. The fact that the party objecting to return gets through the gateway in the second paragraph of Article 13, merely means that there is then an unqualified discretion in the court to refuse return. However, when exercising that discretion the court, as I have mentioned, should in my view follow the guidance of Balcombe LJ in S and S and in Re R.

51. The only other point I wish to add relates to a point left open by Balcombe LJ in Re R at 731, where he said this:

"... I do not find it necessary to decide whether under Art 13, once the court has considered it appropriate to take the child's objections into account, it may also take into account other matters beside the policy of the Convention in the exercise of its discretion in deciding whether to refuse to return the child. The combination of Arts 13 and 18 suggests to me that it may well do so."

In my view both the wording of the second paragraph of Article 13, which appears to create an unqualified discretion, and common sense, strongly suggest that other matters such as the general welfare interests of the child concerned, and indeed (exceptionally) any other relevant matters, may be taken into account.

52. I would not be prepared to hold that the judge erred in the present case in adopting the proper approach in principle (a) as to whether Juliano got through the gateway; (b) as to the balancing exercises; or (c) by considering the position of Melissa first and then the position of Juliano. As to (a), Ward LJ said in Re T at 202:

"The questions whether: (i) a child objects to being returned; and (ii) has attained an age and a degree of maturity at which it is appropriate to take account of its views, are questions of fact which are peculiarly within the province of the trial judge."

I agree. As to (b), the guidance of Millet LJ in Re R at 734, as quoted and applied by the judge, does not appear to me to be wrong in principle, save in a very minor and technical way, namely on onus of proof. On the face of it the judgment of Mumby J does not betray any misconception as to the weight to be given to the purpose of the Convention; nor does it appear to apply the somewhat unorthodox view of Millet LJ in Re R at 735. As to (c), the judge had to start with one of the children. He chose to start with Melissa. It seems to me that that was a perfectly rational decision. As he decided that both Melissa and Juliano, on the individual respective merits of their cases, should not be returned, it was unnecessary for him to revisit his decision on Melissa, in light of the view that he reached the same conclusion on Juliano.

53. Having said that, I am nonetheless of the view that the decision of Munby J cannot stand. In reaching that view I am very conscious that great care must be taken before this court even considers interfering with the exercise of a discretion or a balancing exercise, particularly one carried out with such conspicuous care and clarity as the judge has carried out in this case. He rested his decision, as I think he was in principle entitled to do, on the views of the children, as indeed happened in S and S (see at 502B).

54. However, in agreement with my Lord, Wall LJ, I think it is necessary to look a bit more carefully at the evidence of Mrs Raleigh relating to these views. The 'main reason' given by Melissa for objecting to return was that

"she wants to be where her mother is and she wants to remain in the same household as her younger sister Isabella.... there had been a period of lapsed contact with Isabella which had upset her greatly, so the fact that she is now with her mother and Isabella, she wants to hold on to that situation."

A little later Mrs Raleigh said this:

"... a large part of Melissa's feeling happier here was that she felt more guaranteed to be with her sister."

55. Yet it was clear that Isabella has to be returned to Canada as Munby J held, and it was quite clear from the mother's evidence that she was going back to Canada for the foreseeable future. If the main reason - as it was according to the judge - for Melissa's wishes was that she wanted to be with Isabella and her mother, then that was, with respect to the judge, a reason for her going back to Canada, not for her staying here. Melissa's secondary reason was fear of her father. She was concerned that she would suffer from his "bullying influence" through the medium of the Canadian proceedings. In my view she could be expected to be protected against this by the Canadian courts. Indeed, because her father is in Canada and therefore within the jurisdiction of the Canadian courts, it seems to me that she would in many ways be better protected in practice by the Canadian courts than by the English courts.

56. As to Juliano, it seems to me that very little need to be added. As my Lord, Wall LJ, has indicated, and indeed as the Judge accepted, his objections to return were markedly weaker for various reasons than those of Melissa. If Melissa's reasons cannot justify her remaining here, then Juliano's reasons cannot possibly justify his remaining here. In addition, as my Lord has pointed out, if Melissa goes back to Canada it would be ridiculous for Juliano to stay here, especially if his mother is going back too.

57. I therefore agree that the appeal must be allowed.

(Appeal allowed; no order as to costs; no reporting restrictions).