Vigreux v Michel  EWCA Civ 630
This was an appeal by the mother of an abducted child against the High Court's refusal to order the return of the child under Brussels II on the grounds of the child's objection. The appeal was allowed.
The case is important as it is the first case governed by the regulation to reach the Court of Appeal. Consequently, both Thorpe LJ and Wall LJ have written judgments on the matter. The principle issues discussed were whether or not the trial judge should have taken into account welfare considerations in deciding the case and the interaction of judicial discretion and Brussels II. Both appeal judges also set out some concerns about the need to speed up the judicial process surrounding such cases.
Citation Neutral Number:  EWCA Civ 630
Case No: B4/2006/0426
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE FAMILY DIVISION
Mr Justice McFARLANE
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE THORPE
LORD JUSTICE WALL
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Joelle Vigreux (Appellant)
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Patrick Jacques Robert Michel (1st Respondent)
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Pierre-Mathieu Bernard Rene Michel (2nd Respondent)
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Mr M Scott-Manderson (instructed by White & Sherwin) for the Appellant
Mr M Hosford-Tanner (instructed by Percy Short & Cuthbert) for the 1st Respondent
Mr H Setright QC (instructed by Reynolds Porter Chamberlain) for the 2nd Respondent
Hearing dates: 3rd May 2006
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Lord Justice Thorpe:
1. In this appeal the proceedings are governed by the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Abduction Convention and Council Regulation (EC) No. 2201/2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in matter of Parental Responsibility. This Regulation, which came into force on the 1st March 2005, has come to be known in this jurisdiction as Brussels II Revised. The appeal is significant because it is the first case governed by the Regulation to reach this court.
2. Very little of the background is material. I take it from the judgment of McFarlane J. The parties were not married but had a long relationship during the course of which their son, Pierre-Mathieu, was born on the 14th August 1991. He is therefore now fourteen and three-quarters. The couple and their son are French through and through and following their separation in 2001 proceedings were initiated in the Tribunal de Grande Instance of Melun, the first order being made on the 15th January 2002. It was a conventional order: joint parental responsibility, residence to the mother, contact to the father. The order resulted from contested proceedings, the judge having the benefit of a welfare report prepared by Madame Ratcliffe. She recorded a very strong attachment between Pierre-Mathieu and his father. The parties were restricted from leaving France without the other's express consent and neither was permitted to leave France with Pierre-Mathieu without the other's express consent.
3. It seems that the father appealed that order but left for England prior to the hearing in the Cour d' Appel de Paris on the 15th October 2003. The father's appeal was dismissed and his contact order was not varied to reflect the fact of his departure.
4. In 2004 it seems that the father's only substantial contact was in the summer when Pierre-Mathieu spent several weeks in England. The visit was agreed.
5. The father's next contact was for a weekend at a hotel in France prior to the issue of the father's variation application in the Tribunal de Grande Instance in Versailles. Ominously the application was apparently made by the father and Pierre-Mathieu jointly, the statement in support being jointly signed.
6. Four days later the father was arrested at the Gare de Lyon for assaulting two police officers. For this assault he was sentenced in his absence on the 28th June by the Criminal Court in Paris to one month's imprisonment and a fine. The sentence has never been served.
7. The culmination came in August 2005. The father went to Paris ostensibly for an agreed period of staying contact in France. In reality he and Pierre-Mathieu had pre-planned an escape to England. They left on the 14th August. The removal was deceitful, a breach of the mother's custody rights and a flagrant breach of the orders of the French court.
8. The father's conduct is aggravated by his beliefs, which at least he makes no effort to disguise. These beliefs are revealed by his writings. The excerpts which follow were selected by McFarlane J for the purposes of his judgment. An email from the father to Pierre-Mathieu of 18th December 2004 included: -
"Let's be assured of the support of this government of Chirac which is solely surrounded by Jews who suck the blood of humanity, feeding from all racial and political hatred. Let's bump off Chirac and his secret police and get ready."
9. On 10th April 2005 he wrote to Pierre-Mathieu: -
"In France (the French judges) are bandits and layabouts, small-time poxy revolutionaries, Jews playing the martyr whom you have to make walk over hot coals before they will do anything. I am therefore going to doorstep the family court judge directly this week in Versailles to ask if he personally knows St Peter's successor in his department and whether he has received fresh orders from Goebbels, the former justice minister, from the time of Vichy."
10. On 3rd May 2005 the first email to Pierre-Mathieu included: -
"You must ask them every day at breakfast when you get up, 'let me live with my father. Give me my money and I will leave'. Keep saying that each time they talk to you and say it everyone."
11. The second email of the same day included this: -
"It's under way. I am waiting. They will see at the end of the current holidays. I told you to instruct a lawyer for the children in Versailles. You have to request the lawyer for the children in writing. I have sent off the request to leave the country for their holidays. You have to take the request from your mother and me to the town hall. You must collect the authorisation to leave the country from the town hall and post it to me. Then you say that you have mislaid it and you ask for another one for them. Then I can come and collect you. Pack a small suitcase and stay in the UK afterwards whilst the request is put before the judges in France. You must write a letter to the children's judge before you leave saying that you want to live with me in the UK and give a copy to the police."
12. The joint statement to support the application of the 12th May 2005 contained the following passages: -
"Why does Pierre prefer to be with his father? The father took three years' paternity leave at his birth to look after him; the mother was working nights in Paris. Consequently, bottle feeds, nappy changes, stories and walks came from the father. The minor Pierre lived in the father's home from his birth until the High Court in Melun ordered a feminist activist called Ratcliffe to prepare a demoralising welfare report. This nationalist Jewess then peppered her report with false litanies and refused to correct her forgery in writing before submitting it to this court. This wicked Zionist mole who in auto-conclave passed a vote of confidence in the custody of Pierre to his mother, a fascist of the same species, turned everything upside down. The Family Judge of Melun, abusively made up of women only, more capable of pronouncing administrative orders than subscribing to a civil contract, plucks away at pending files in massive doses, only re-reading the last line of administrative violence through huge motivation to separate father and children before they go into the extermination camp of legal murder."
"The mother, an out-and-out bitch, has well prepared and planned his kidnapping advance. She is advised by her Jewish in-laws and by the feminist advisers of the Moissy Police."
13. On any view these writings demonstrate a complete disregard for his son's emotional wellbeing and development as well as a deluded and poisoned mind.
14. I turn now to the proceedings in this jurisdiction. The mother applied to the French Central Authority on the 26th August 2005. The papers were sent to the English Central Authority on the 16th September 2005. On 23rd September 2005 proceedings were issued under the Child Abduction & Custody Act 1985 and the inherent jurisdiction. On the same day Bodey J at a without notice hearing made holding orders which were served on the father together with the remaining papers by 29th September 2005. The case was listed for hearing on notice on the 4th October 2005 but was not reached that day. On the following day Bracewell J gave directions. On the 17th October 2005 a contested application for separate representation for Pierre-Mathieu was granted by Hedley J. On the 11th November 2005 the case was listed for final hearing but was not reached. Baron J re-listed for final hearing on the 28th November. On that day the case was again not reached. Baron J sought in vain for a further date that term. Further directions were given by Her Honour Judge Mayer on the 1st December 2005 listing the final hearing for the 12th January 2006 and providing for a psychologist to report on Pierre-Mathieu's objection by that date. On the 12th January 2006 the report was not available and Kirkwood J, in a finely balanced decision, adjourned the trial to 13th February 2006 to enable Dr Grania Clarke to report in the interim. The trial, without oral evidence, was before McFarlane J on the 13th and 14th February 2006, his judgment being given on the following morning. Thus the duration of the proceedings from commencement on the 23rd September 2005 to judgment on the 15th February 2006 was nearly five months.
15. This was not an exceptional case and compliance with the Regulation required completion by about the 3rd November 2005. Given that disregard of our obligations it perhaps not surprising that the mother returned to the Cour d' Appel de Versailles on the 7th December 2005. At a hearing at which the father was neither present not represented the court, having regard to the gravity of the abduction, granted sole parental authority to the mother. The order continued: -
"Given the particularly conflicting background between both parents and the writings of the father, it is ordered that a psychiatric report be prepared and that judgment be reserved in the meantime as to the other requests which now no longer apply since the child resides in England at present. The father will have to come to France for the purpose of the report."
16. Dr Isembert was appointed to carry out a full child and family assessment. This development has been frustrated by the father's refusal to cooperate.
17. Since the abduction it is hardly surprising that there has been little contact between Pierre-Mathieu and his mother. There was a tense meeting following one of the London hearings. Their Christmas communication was poor, for which each seems to blame the other. McFarlane J rightly criticised the mother for revealing her recent marriage to her cohabitee, Monsieur Barbeau on the second day of the hearing. This was particularly insensitive given the antagonism between Pierre-Mathieu and Monsieur Barbeau, now his step-father.
18. The outcome of the trial was the dismissal of the mother's summons under the Child Abduction & Custody Act. The ancillary application under the inherent jurisdiction was kept alive in case of future need. McFarlane J held that the evidence of the father, of Pierre-Mathieu and of Dr Clarke established that Pierre-Mathieu's objection to return had been made out. He then proceeded to the exercise of a discretion, balancing against the policy of the Hague Convention the strength of Pierre-Mathieu's objections together with certain welfare considerations. He concluded that the discretionary balance was weighted against the return order.
19. I note briefly the subsequent developments. On the 1st March the mother's appellant's notice was filed with this court. On the 4th April 2006 I directed an oral hearing of the permission application with appeal to follow on 3rd May 2006. The transcript of McFarlane J's judgment was received by the mother's solicitors on the 17th March and despatched on the next working day, 20th March to the Central Authority. The translated judgment and other documents were sent to the Central Authority in Paris on the 13th April. The chronology of these last steps is important given the obligations imposed on the Court by Article 11(6) of the Regulation. If that Article had been duly complied with the relevant documents would have been despatched to Paris by 17th March, the date the transcript was received by the mother's solicitors.
20. For the appellant Mr Scott-Manderson's principal submission was that the judge had failed to give sufficient weight to the French court process, the French court being fully seised in the welfare case to settle Pierre-Mathieu's future. In the elaboration of this submission he suggested that the Regulation had raised the bar against the abductor. The specific provisions in Article 11, the automatic enforcement provisions within Article 42, and the supremacy over the Hague Convention established by Article 60 were the sources of the submission. Mr Scott-Manderson accepted that he had not put his case so high before the judge where he had accepted that the outcome was to be determined by the recent decision of this court in Zaffino v Zaffino  1 FLR 410. Mr Scott-Manderson did not concede that on that authority he would have no grounds for criticism of the judgment but did concede that he would have faced a much harder task, although he would still contend that the judge had erred in the exercise of his discretion. Here Pierre-Mathieu's stated objections would be met by the protective measures available in France. Further the judge should not have relied upon Jean-Pierre's belief there would no justice in France, and that he would not be involved in the proceedings.
21. These submissions were strongly challenged by Mr Hosford-Tanner for the father and Mr Setright QC for Pierre-Mathieu. They of course accepted the supremacy of the Regulation and that in certain respects Article 11 reformed the operation of the Convention within the European Union. However, they submitted that the emphasis on protective measures in Article 11 of the Regulation are in relation only to a defence raised under Article 13(b) of the Convention. Therefore nothing within the Regulation expressly applies to a defence that rests only on the objections of the child. Accordingly the judge had correctly applied Zaffino and had carefully balanced all relevant considerations in arriving at his discretionary conclusion.
22. Given that this is the first case to which the Regulation applies to reach this court it is necessary to set out those provisions relevant to the abduction of a child from one Member State to another. The interrelationship of the two instruments is expressed in recitals 12, 17, 18 and 21 as follows: -
"(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in the child's residence or pursuant to an agreement between the holders of parental responsibility.
(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision of the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.
(18) Where a court has decided not to return a child on the basis of Article 13 of the Hague Convention, it should inform the court having jurisdiction or central authority in the Member State where the child was habitually resident prior to the wrongful removal or retention. Unless the court in the latter Member State has been seised, this court or the central authority should notify the parties. This obligation should not prevent the central authority from also notifying the relevant public authorities in accordance with national law.
(21) The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required."
23. These recitals are the foundation of the provisions for jurisdiction in cases of child abduction and return of the child, namely Articles 10 and 11 as follows: -
Jurisdiction in cases of child abduction
In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.
Return of the child
1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter "the 1980 Hague Convention"), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.
2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.
3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.
Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.
4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.
5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.
6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.
7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.
Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.
8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.
24. Section 4 deals with enforceability of judgements concerning access and the return of the child. It is Article 40 that applies to an order for the return of the child and Article 42 establishes the enforceability of such an order within any other Member State in the following circumstances: -
Return of the child
1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.
Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable.
2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if:
(a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity;
(b) the parties were given an opportunity to be heard; and
(c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention.
In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures.
The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning return of the child(ren)).
The certificate shall be completed in the language of the judgment."
25. Finally the supremacy of the Regulation over the Hague Convention comes from Article 60 which provides: -
"In relations between Member States, this Regulation shall take precedence over the following convention insofar as they concern matters governed by this Regulation:
(e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction."
26. In approaching my conclusion I say at once that this was clearly a difficult case presenting the judge with a finely balanced decision. His conclusions are that Pierre-Mathieu objected to return and that he is a child of sufficient age and maturity are not open to challenge. For me the single question in the appeal is whether he erred in the exercise of the discretion that resulted from those conclusions. I have ultimately concluded that he did for the reasons that follow.
27. The judge identified the nature of Pierre-Mathieu's objections when he recorded in paragraph 27: -
"Pierre told Dr Clarke that he would be sad if he returned to France because he would lose contact with his father with whom he has a lot of affinity. He also stated that if he were to be returned to France he would return to the United Kingdom when he was sixteen."
28. Again in paragraph 38 there is this: -
"Pierre also, in my view, has an objection to France. He is not impressed with the lack of involvement that he had as a young person in the French process. He does not expect, if matters are dealt with in France, that his case will receive a fair hearing. He is concerned that his father will not take part in the process because his father is reluctant to go to France in view of the prison sentence that is hanging over him."
29. Those views have to be judged in the context of the available protective measures in France. These are recorded in paragraph 31 of the judgment as follows: -
"Helpfully, Mr Sherwin, the mother's solicitor, and Mr Scott-Manderson, counsel, assisted by the English Central Authority, have made enquiries with the French authorities as to what would happen in France were Pierre to go back. Details are still being fleshed out, but it is plain that the public prosecutor, who takes a role in these matters, would inform the French children's judge of Pierre's return. Whilst Pierre would be living with his mother for a short time, the matter would go before the children's judge within two or three days of Pierre's return. No doubt then the French court would give directions for what inevitably be a further interim period whilst the matter was assessed and court time was made available for a considered hearing. There is the potential for the French Social Services to be involved and monitor the situation. The French could would, I am told and accept, look to Pierre being a party to the proceedings and being separately represented, as he has been in this court. Communications show that Pierre could choose his own lawyer, or either parent could choose a lawyer for him. The legal representation of Pierre would be paid out of what would in English terms be Legal Aid."
30. I therefore question whether this consideration deserved the weight which McFarlane J gave it during the balancing exercise when in paragraph 48 he said: -
"However the fact that the father may not take part in the French process is of significance in relation to Pierre. I have already rehearsed the fact that his fear is that there may not be a proper process in France because of the father's actions and his inability to take part in it."
31. Perhaps more substantial is my concern at the weight given by the judge to the welfare considerations which he identified principally in paragraphs 52 and 53 thus: -
"I take account that Pierre has moved schools four times. He has settled well at the English school and is doing well.
I take account that to move him back to France now would inevitably be a disruption in his life, both physical and, perhaps of more consequence, emotional."
32. These factors are picked up when McFarlane J balances the scales in paragraph 55: -
"I am satisfied in this case that Pierre's wishes and feelings should prevail. I am impressed by the mature manner in which he has conducted himself as a party to these proceedings, and indeed during the hearing. That stance and what he says about what he wants and what he feels deserves respect and requires the court to give that aspect of the case considerable weight so that, allied with the education and disruption issues, it outweighs on this occasion the policy of the Convention. The balance therefore comes down in favour of a refusal of the mother's application for a return to France."
33. These welfare considerations are precisely the sort of considerations that Article 11(3) of the Regulation is designed to eliminate from the account. Had judgment been delivered at the end of October in accordance with the requirements of the Regulation education and disruption issues could hardly have come into the reckoning. Furthermore these considerations are dwarfed by the very profound concerns for Pierre-Mathieu's welfare arising out of the very issue identified by the order of 7th December 2005 namely "the particularly conflicting background between both parents and the writings of the father". In so ordering the Versailles court gave specific directions for expert investigation at a time when the London court was already in breach of the its Regulation obligation to determine the mother's return application "using the most expeditious procedures available in national law."
34. McFarlane J was plainly concerned at the potentially greater risk to Pierre-Mathieu's welfare created by an extension of the period of abduction. He added the following rider to his decision to dismiss the return application: -
"57. Before leaving the case it is right to record the concern I have about this father being Pierre's sole carer. On the basis of the e-mails that I have read and Dr Clarke's considered view, I would encourage the father to co-operate with the obtaining of an adult psychiatric report on his wellbeing. The English court will do whatever is asked of it by the French court in terms of facilitating that. I take the view that it is in Pierre's interests, at least in the short term, to leave some proceedings open but adjourned generally before the English court. I therefore propose to dismiss the child abduction application, but to adjourn generally the application that the mother has made under the inherent jurisdiction of the High Court. That allows the English court, if requested by the French court, to make orders that facilitate assessments over here. It also, I hope, will have the benefit of leaving Pierre's English lawyers available to him in this interim period.
58. I had considered making a direction under section 37 of the Children Act, asking the local authority in Reading to investigate Pierre's circumstances with his father. I do not take the view that that is necessary at this stage. Also it is questionable whether I would have any jurisdiction to make that order in this case, given that a consequence of it would be the potential for proceedings to be started by the local authority in this jurisdiction."
35. Therefore in my view this was not a case in which peripheral welfare considerations could be introduced into the discretionary conclusion. On the application for return the judge had to weigh only the nature and strengths of Pierre-Mathieu's objection against the policy of the Regulation and the fact that the essential welfare investigations and decisions must be taken in France.
36. Of course the judge recognised that his refusal of the return order would inevitably trigger the very significant new procedures introduced by Article 11 (6) – (8). The investigation and determination of the very complex issues surrounding welfare were urgently required. The return order would have enabled the court in Versailles to resume its responsibilities within days of Pierre-Mathieu's arrival. The procedures provided by Regulation 11 (6) – (8) would delay that process by months, even without the slippage that has since occurred in our compliance with Article 11(6).
37. Is my conclusion to be taken as an acceptance of Mr Scot-Manderson's primary submission and therefore a conclusion of general application? I do not so intend since I accept the submission of the respondents that the Regulation is not to be taken to have achieved implicitly more than it has expressed. However there can be little doubt as to the intention of the member states that opted for the Regulation. The provisions relating to the return of abducted children were the most contentious and therefore the most difficult of resolution during the negotiation of the Regulation. The resolution of the resulting impasse was the retention of the operation of the Hague Convention throughout the European region but with the fortification of what were seen, in the light of nearly twenty years of operation, as weaknesses or loopholes through which abductors were escaping. The fortifications were threefold: the emphasis on protective measures to nullify an Article 13(b) defence; the return of the case to the requesting state in the event of a refusal by the requested state and automatic enforcement of return orders throughout the region. The policy that underlies these provisions is clear and it is important that states bound by the Regulation do not undermine its intended effect either in its interpretation or in its application in accordance with the stringent time limits stipulated.
38. The Good Practice Guide published by the Commission does not have the force of law but it remains an extremely useful tool for judges and practitioners who approach the Regulation without much previous experience.
39. At the trial of this application there can be little doubt that the focus was more on the Convention than the Regulation. Although McFarlane J carefully noted the terms of the Regulation in his consideration of practicalities in paragraph 43 – 45 of his judgment, the heading of the application made no reference to the Regulation and in recording his task in paragraph 9 McFarlane J said: -
"It is plain that there was an established plan by the father and Pierre immediately to come to England. There was a removal of Pierre on 14th August 2005 from France. Since that time Pierre has resided with his father in England. It is plain that the removal was in breach of the mother's custody rights; it was without her permission and was "wrongful" within the terms of the Hague Convention. The ordinary operation of the Convention is that Pierre must be returned to his country of habitual residence, France, unless the father or Pierre establish one or other of the various exceptions in Article 13, and the court, in the exercise of its discretion, decides not to send him back. Those latter issues have therefore been the focus of this hearing before me."
40. Furthermore, nowhere did McFarlane J refer to the requirement for maximum expedition or to the extent to which Article 11(3) had been breached. The significance of the Versailles order of 7th December 2005 is heightened by an appreciation of the breach of our Article 11(3) obligations.
41. What then are the lessons to be learned? Counsel informed us that an application under the Hague Convention used to be designated with a specific prefix to the court number which assisted preparation and management to ensure compliance with the Convention requirement for expedition. That requirement, which coincidentally is also expressed in Article 11, is less stringent. Nevertheless it provides: -
"The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of the children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requesting State, or to the applicant, as the case may be."
42. That requirement led to specific provisions in Part 6 of the Family Proceedings Rules 1991 to introduce abbreviated time limits for the filing of the written cases and to ensure that a Hague application could not be adjourned for more than twenty-one days. We were informed by the Bar that since the special prefix for Hague cases was removed some four years ago there had been some loss in expeditious listing.
43. The arrival of the Regulation has led to some amendment of the Rules but largely in relation to enforcement.
44. As to Article 11(3), in my judgment the application should be headed both under the Child Abduction and Custody Act 1985 and under the Regulation. On issue the outside of the Court file should be clearly marked to draw attention to the nature of the application. It should also state the date on which the six week period will expire in order to draw to the attention of the court administration the "hear-by" date which stringent compliance with the Regulation would require.
45. In our justice system trials under the Convention and the Regulation are restricted to the President and the eighteen judges of the Family Division. In any case of difficulty one to two days will be required for the trial. Even were the trial date sought on the day of issue it would be months rather than weeks ahead because of the great pressure on the Division of our domestic cases. Rarely a listing might be found before the hear by date if a previous fixture had vacated. Generally to comply with the requirements of the Regulation would require the removal of a previously fixed case from the list. Thus the application under the Regulation would be jumping the queue. Opinion may differ as to whether that is acceptable. However that is not a debateable issue since the United Kingdom has opted in to the negotiation of the Regulation and is bound by its stringent requirements.
46. As to Article 11(6) the first demand is clearly on the trial judge, who, if not delivering a written judgment, must expedite the transcript of the extempore judgment and then expedite its approval. The translation of the documents is an obligation which has been undertaken by the Central Authority. I draw attention to the memorandum of the 3rd November 2005 and that of February 2006 which established the practical arrangements. Clearly if the Central Authority is to discharge this obligation, a heavy one given that the Regulation is now applied in twenty-four jurisdictions, it is essential that the judgment in English is sent to the Central Authority very quickly.
47. The President has read this judgment in draft and has approved paragraphs 44 – 46 which have potentially onerous consequences for the Family Division. It remains to be seen what will be the annual tally of contested applications under the Regulation. Research conducted by Professor Lowe for the Permanent Bureau reveals that in 2003 54% of the incoming return applications came from countries now bound by the Regulation. As the European Union expands so may the demands of the Regulation. However under the terms of recital twenty-nine to the Regulation the Commission is required to keep the operation of the Regulation under review. If the six week target is proving generally impractical it may have to be reconsidered. For the present our jurisdiction has acquired a reputation for high standards, administrative and judicial, in the application of the Hague Convention. It behoves us to be at or towards the top of the performance league when the Commission takes stock of the operation of the Regulation in its early stages.
48. Lord Justice Wall:
49. I agree. This appeal raises important issues of principle and practice in relation to cases under the 1980 Hague Convention on International Child Abduction (the Hague Convention) to which Council Regulation (EC) No 2201 / 2003 of 27 November 2003 (Brussels II Revised) applies. I say at once that I have reached the conclusion that the appeal should be allowed on the basis of one proposition only, which I see as central to it, and which I can state succinctly. This, in my judgment, is a case in which the policy of the Hague Convention, buttressed by the provisions of Brussels II Revised, powerfully outweighs the fact that the Article 13 defence raised by the child in question (identified in this judgment only as Pierre-Mathieu) is made out. The judge found, and the finding is not capable of challenge, that Pierre-Mathieu "objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of (his) views". I shall hereinafter refer to this aspect of Article 13 as "the child's Article 13 defence". Sympathetic as I am both to Pierre-Mathieu (whose life has, on any view, plainly been adversely affected to a serious extent by the conflict between his parents) and to the judge's careful analysis, I part company with the latter on what I regard as this fundamental point.
50. In view of the importance of the issues raised by this appeal, I have decided to write a separate judgment. I have, of course, had the opportunity to read Thorpe LJ's judgment in draft. I agree with his conclusion and with his reasoning. I recognise, accordingly, that my judgment will contain an element of repetition, which I will try to keep to a minimum.
Traps to be avoided and the principles to be applied.
51. I begin by acknowledging the obvious fact that, as the judge pointed out when refusing permission to appeal, his decision was made in the exercise of a judicial discretion. I also take fully into account the fact that in Re J (Child Returned Abroad): Convention Rights  UKHL 40,  2 FLR 802 (Re J), the House of Lords was critical of this court for reversing Hughes J (as he then was) at first instance in a child abduction case, where the judge had directed himself impeccably as to the legal principles to be applied and had made an assessment of risk which had been open to him. The House of Lords referred to the well-known case of G v G  1 WLR 647, and concluded; (1) that the evaluation and balancing of material factors was a matter for the judge; and (2) that his decision could only be impugned if it was so plainly wrong that he must have given too much weight to a particular factor.
52. I am quite satisfied that we are in different territory in the instant appeal. No doubt for this reason, Re J was not cited to us. I cite it myself only to demonstrate my sensitivity to the point. Above all, Re J was not a Hague Convention case: the country concerned was Saudi Arabia. The crucial question for the exercise of judicial discretion in the instant appeal, namely the need to balance the success of the child's Article 13 defence against the fundamental purposes of the Hague Convention simply did not arise in that case.
53. That it is open to this court to disagree with and to overrule a trial judge on the exercise of a judicial discretion on a point of principle is, I think, well established as a proposition of law. I can, however, provide a clear example from my own experience. In Re C (A Minor) (Care Proceedings: Disclosure)  Fam 76, I had declined, in proceedings under Part IV of the Children Act 1989, to order disclosure to the police of statements made, and other evidence given by, the parents of a child who had died in their care. I took the view that, in all the circumstances of the particular case, the public policy of encouraging parental frankness in proceedings under the Act predominated, and that it outweighed the public policy which required such matters to be fully investigated by the police. Giving the leading judgment in allowing the appeal and reversing my decision, Swinton Thomas LJ said -  Fam 76 at 87: -
"The judge directed himself fully and correctly as to the law. I have no doubt that he was right to order disclosure of the bundle and the transcripts of the evidence of the medical witnesses. However, I part company with him in the exercise of his discretion in relation to the statements of Mr. and Mrs. C. and such parts of the evidence and judgment as relate to the injuries sustained by S.C. and the causation thereof, including the evidence given by the parents. As I have said, this is a very grave allegation indeed. In my view, on the facts of this case, the judge was wrong to hold that the public interest in encouraging frankness predominated over the other factors which I have identified…. In this case, in my view, it is of prime importance that there should be a full and proper investigation of this killing, with the authorities armed with full and accurate information. In my judgment, balancing all these factors the judge clearly ought to have ordered disclosure of the statements and the evidence of the parents and other members of the family to the police."
54. Secondly, I am very conscious of the fact that in a decision of mine at first instance which was cited to us, Re L (Abduction: Child's Objection to Return)  EWHC 1864,  2 FLR 1042 (Re L), I exercised my discretion under the Hague Convention and declined to order the return to France of a child aged 14, who had established the child's Article 13 defence. Moreover, I did so notwithstanding the fact that the child was subject to ongoing proceedings in France, in which an order had been made that the child was to live with his father in France from a given date. That order had not been obeyed. Furthermore, at the time I heard the case, Council Regulation (EC) (No 1347 / 2000) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matter of parental responsibility for children of both spouses (colloquially known as Brussels II) was in force, albeit not in its current, revised form.
55. In that case, I was satisfied of two matters in particular. They were ( 2 FLR 1042 at 1058): -
"(1) nothing in Brussels II prevents me hearing the application under the Hague Convention and deciding it on the evidence before me and on the basis of established principles of English case-law relating to the Convention;
(2) there is nothing in the policy of the Hague Convention which requires me to apply the provisions of Brussels II to the exercise of my discretion in this case."
56. In Re L, I found - indeed, I had no doubt – that the child in question was of an age and degree of maturity at which it was appropriate to take account of his views. His defence under Article 13 was thus made out, and the door was open to the exercise of my discretion not to return him to France.
57. Two particular factors influenced me in Re L. The first was that I found that the mother had also made out an Article 13b defence. Secondly, I took into account as an important factor the father's failure to participate in the English proceedings, and his breaches of various orders to file evidence. He was, as Mr. Henry Setright QC for the mother in the case contended "invisible". Further, he had been guilty of serious delay in the prosecution of the English proceedings, and I held that "once the door is open to discretion (as it is here) delay in the resolution of the proceedings is a factor which can properly be taken into account when deciding whether or not a child should be returned".
58. These factors, in my judgment, are amply sufficient to distinguish Re L from the instant case, quite apart from the fact that the different provisions of Brussels II Revised apply in this appeal. True it is that there has been delay – a subject to which I will return below – but that delay has been due to the failure of the English judicial system promptly to process the case to a final hearing, not to any default on the part of Pierre-Mathieu's mother.
59. Thirdly, I am very conscious of the fact that it was my first instance decision to return the children in question to Spain which was reversed by this court in Re T (Abduction: Child's Objections to Return)  2 FLR 192 (Re T). I must, therefore, have been plainly wrong to exercise my discretion in favour of the principles enshrined in the Hague Convention as I did. However, in the instant appeal I rely upon what was said about Re T by both Thorpe LJ and myself in the recent decision of this court in Zaffino v Zaffino (Abduction: Children's Views) [2005 EWCA 1012,  1 FLR 420 (Zaffino), a decision upon which reliance was placed in the argument before us. At the conclusion of his review of the authorities, including, of course, Re T, Thorpe LJ said:
" Let me then first express my conclusions on the law and the principles. I would unhesitatingly endorse the approach expressed by Balcombe LJ in Re S (A Minor) (Abduction: Custody Rights  Fam 242 (Re S) and in Re R (Child Abduction: Acquiescence) 1995] 1 FLR 716. Millett LJ's formulation (also in Re R) 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 art 13 (possibly fortified by art 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."
60. The relevant extracts from the judgments of Balcombe LJ in Re S and Re R are set out in Thorpe LJ's judgment and I need not repeat them. The extract I have cited, however, requires a little elucidation. In Zaffino, Munby J at first instance had relied on Ward LJ's citation and approval of Millett LJ's statement in Re R ( 1 FLR 716 at 734G-H that where a child's Article 13 defence is made out, the child "will not (the emphasis is in the original) be returned against his wishes unless there are countervailing factors which require his wishes to be overridden". Thorpe LJ did not accept that formulation, neither, with respect, do I. Equally, I agree with Thorpe LJ's observation in paragraph 14 of his judgment in Zaffino  1 FLR 410 at 416, when he said: - "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." Having then cited the passage from Re T in which Ward LJ cites from the judgment of Millett LJ in Re R, Thorpe LJ concludes: -
"Thus it seems to me plain that Ward LJ was simply drawing attention to a passage from the judgment of Millett LJ in Re R and declining to express more than tentative support for the proposition."
61. I respectfully agree with this analysis. In my own judgment in Zaffino, at paragraph ,  1 FLR 410 at 420/1, I said this: -
" 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  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."
62. Nothing in the instant case causes me to change my mind on this point. It follows, in my judgment, that the test laid down by Balcombe LJ giving the judgment of this court in Re S remains good law, and that there is no statement of principle in Re T which would prevent this court refusing to exercise its discretion in the child's favour and ordering his return to France.
The significance of Zaffino.
63. In my judgment, Zaffino is a re-statement of well-established principles, and a demonstration of their application to a given set of facts. Speaking for myself, I would urge caution in any over interpretation of my statement in paragraph  that when considering the objections of one child in the context of the family overall (there were six children in Zaffino), "the child's place within the family, and the consequences of the exercise of discretion on that child, must be considered". What I meant by the use of the word "consequences" is, I think, apparent from its context. The consequences for the child in question (Melissa) had her defence alone succeeded would have been that she would have been left on her own in England, whilst her father and her other siblings returned to Canada. The consequences for Melissa and Juliano (the two children whose children's Article 13 defences succeeded before the judge) were the same: they would have been left in England, separated both from their parents and their siblings.
64. Such considerations do not, of course, apply in the instant case, since Pierre-Mathieu is an only child, although he has a number of adult half-siblings, all of whom live in France. I do not, however, resile from my use of the phrase "the consequences of the exercise of discretion for the child must be considered". I should, perhaps have inserted the word "practical" before "consequences. That, certainly, was my intended meaning.
The exercise of discretion in the instant case.
65. I therefore turn to the central issue in the case: the exercise of the discretion not to return taken by McFarlane J on the facts of the instant case.
66. Following Re S, the first question I have to ask myself is, I think: what is it about this case which renders it exceptional and requires the court to exercise its discretion not to return Pierre-Mathieu to France? I have to say that I struggle to find in the facts any conclusive factor or factors which compel that exercise of the discretion.
67. What stand out, of course, are Pierre-Mathieu's age, the strength of his feelings and the fact that Dr Clarke formed a favourable view of his maturity. Furthermore, she reported to the judge that Pierre-Mathieu "appears to be able to separate his views from those of his father, to see some of this father's views as fixed and sometimes bizarre, and to disagree with these both outside and within his father's presence". These factors made Pierre-Mathieu's Article 13 defence a strong one. But is that enough, when weighed against the policy of the Convention and viewed in the overall circumstances of the case? I do not think it is.
68. This is, on any view, a straight-forward abduction in flagrant breach of Article 3 of the Hague Convention. Moreover, it is a French case through and through. Pierre-Mathieu's father only refuses to return to France because he is in breach of orders of the French court and for fear of the legitimate consequences which will be visited on him by the French penal system. The French court is plainly seized of all questions relating to Pierre-Mathieu's welfare. Its proceedings are pending and active. It is plainly for the French court to take all the necessary decisions about Pierre-Mathieu's welfare, not the English High Court.
69. Factors which point strongly, in my judgment, to the need to uphold the policy of the Convention are the fact that Pierre-Mathieu's father wilfully refuses to take part in the French proceedings, and has plainly persuaded Pierre-Mathieu that he will not receive a fair hearing in France. On the first point, it has long been established in the English jurisprudence relating to the Hague Convention that a parent cannot rely on his own wrong-doing in order to establish a defence under Article 13. Thus it is trite law that an abducting parent cannot found an Article 13b defence by relying on his or her refusal to return with the child if the child is returned: - see, for one example among many, Re C (A Minor) (Abduction)  1 FLR 403 at 410 per Butler-Sloss LJ. Although the passage relates to Article 13(b) (which, of course, is not this case) the passage is, I think, nonetheless worth citing in the overall policy context: -
"The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him. The Convention does not require the court in this country to consider the welfare of the child as paramount, but only to be satisfied as to the grave risk of harm. I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent."
70. In my judgment, when balancing the policy of the Convention against the exercise of the discretion not to return, the fact that the abducting parent refuses to participate in the proceedings from which he has wrongfully removed the child, thereby instilling in the child a fear that he will not receive justice in those proceedings, is a factor which should be given little or no weight, even in a child's defence case.
71. On the latter point, even if Pierre-Mathieu has not reached his conclusion about the French court at his father's instigation, he is manifestly and plainly wrong in believing that he will not receive a fair hearing in France. Not only is it clear that he will receive such a hearing; it is equally clear that he will be entitled to be represented in the proceedings by the lawyer of his choice - see the FAX received from the Ministère de la Justice dated 14 February 2006, which says in terms: "The child can choose his own lawyer. He could contact directly a lawyer in the bar of the competent court". Furthermore, "the fees of his lawyer is paid by judicial aid" (sic) and in addition "the International Social Service could help for the child's return".
72. In my judgment, McFarlane J was plainly wrong to give Pierre-Mathieu's misconceived perception of the French proceedings the weight he did in the passage in paragraph 48 of his judgment which Thorpe LJ has cited in paragraph 30 of his.
73. Furthermore, in my judgment, the judge's acceptance, in the same paragraph, of the limited options which Pierre-Mathieu envisages as open to himself if returned to France is, as a consequence, also plainly wrong. Pierre-Mathieu envisages his choices as: (1) staying with his mother; (2) going into foster care; and (3) absconding. The judge comments: "that does not seem to me to be a unrealistically pessimistic set of options to hold". With respect, I disagree. In my judgment, quite apart from Pierre-Mathieu's right of access to French Social Services, the judge's assessment leaves out of account the most important and relevant option of all, namely appearing in front of the French judge with the lawyer of his choice and asking the judge to allow him to live with his father in England. This court must not only not give credence to the father's manifestly irrational and patently absurd view of the French judiciary: it must not assume that the French judge will refuse such a request, let alone that he or she will not deal with it fairly and appropriately. Indeed, the only legitimate assumption which the court can and, and indeed, must make about the exercise of its judicial powers by a co-signatory under the Hague Convention and Brussels II Revised is that the court in the foreign state, since it is seized with the question of Pierre-Mathieu's welfare, will exercise is powers properly and fairly and will reach an appropriate decision which it deems to be in the best interests of Pierre-Mathieu.
74. In my judgment, therefore, by placing what I perceive to be substantial weight on Pierre-Mathieu's perception of the French proceedings (however he acquired it) the judge was plainly wrong. I regard that error as making a very substantial contribution to the exercise of his discretion, and it plays a corresponding part in my conclusion that the judge's exercise of discretion was flawed.
75. I also respectfully agree with Thorpe LJ that the judge was also plainly wrong to give weight to selective welfare considerations in the manner demonstrated by the former's judgment. In my reading, McFarlane J demonstrated the correct approach in paragraph 49 of his judgment, and then did not follow his own lead. This is what he said in that paragraph: -
"I do not involve myself in determining any wide issues of welfare here. It seems to me that there are concerns from a welfare point of view about Pierre living with his mother, and there are concerns from a welfare point of view about Pierre living with his father. These things are, in the imprecise detail that I have them, at least neutral, if not evenly balanced. I cannot, and should not, determine them. All I am doing is to determine whether in my discretion Pierre-Mathieu should return to France. "
76. As a self-direction on welfare in a Hague Convention case, that seems to me to be immaculate. But it prompts the obvious question: if welfare considerations are "at least neutral, if not evenly balanced", how is it possible to exercise the discretion in favour of a non-return? For the child's Article 13 defence to prevail over the policy of the Convention, there must be something in the facts of the case which takes it out of the ordinary into the exceptional. Speaking for myself, and agreeing as I do with Thorpe LJ's analysis of the welfare issues, I see nothing in the facts relating to welfare which warrants the judge exercising his discretion as he did.
77. For these reasons, I have come to the conclusion that the judge was plainly wrong to exercise his discretion to refuse a return of Pierre-Mathieu to France. In reaching that conclusion, however, I would like to make it very clear that I have considerable sympathy for the difficult situation in which the judge found himself. A case which raised a number of sensitive issues, including the unchartered territory of Brussels II Revised had already been grossly delayed, and required an immediate decision. Unlike the procedure in this court, the judge did not have the luxury of reserving judgment. He allowed himself only a period of overnight reflection before he gave judgment. In these circumstances, I would, without affectation, like to congratulate him on the clarity and humanity of his judgment. A thoroughly respectable case could be made out for dismissing this appeal: indeed, when I first read the papers, my instinctive reaction was that the judge was to be supported. Further reflection, however, a privilege not allowed the judge, coupled with skilful argument in this court, has led me to the clear view that his decision was wrong.
The Brussels II Revised dimension.
78. Although I am content to decide this appeal on the discretion point, I have to say that, speaking for myself, I think there is some force in Mr. Scott Manderson's first ground of appeal, namely that the judge failed to give sufficient weight to what he described as "the European factors" deriving from the application of Brussels II Revised. It is of course true, as Mr. Henry Setright QC, for Pierre-Mathieu pointed out, that for present purposes, whilst Article 60 of Brussels II Revised gives it precedence over the Hague Convention, the only specific provision of Article 11 which affects the implementation of Article 13 of the Hague Convention (apart from the need, identified in Article 11(3)) for the proceedings to be concluded within six weeks) is Article 11(4) which relates specifically only to a defence under Article 13b, which this is not. Mr. Scott Manderson was thus unable to derive direct support from Brussels II Revised in his efforts to rely on the protective measures available to Pierre-Mathieu in France.
79. Nonetheless, when the court is considering the policy of the Convention, I do not think it can shut its eyes to the fact that pursuant to Article 11(8) the French court, in the event of an order for the non-return of Pierre-Mathieu, can subsequently require his return; and if it does so, the English authorities have no alternative but to comply.
80. I am, of course, far from saying that in a case to which Brussels II Revised applies, no child's Article 13 defence will ever, or should ever succeed. That this is manifestly not the case is clear from the terms of Article 11(8) itself, which plainly envisages non-return orders being made. Nonetheless, in my judgment, when one is considering the policy of the Hague Convention in a case where there are active proceedings pending in the court of the child's habitual residence, and where that court is plainly seized of all determinative welfare considerations, Article 11(8) seems to me, at its lowest, a reinforcement of the policy of the Hague Convention, and thus falls to be considered in the exercise of discretion.
81. The judge was plainly aware of Article 11 of Brussels II Revised (see paragraphs 44 et seq of his judgment). He says in paragraph 45 that he has "considered all that material" and states that he does not intend to read it into his judgment. However, nowhere, as I read the judgment, does he analyse the material. Moreover, all he says about it is contained in paragraph 47 of the judgment, which begins with the following words: -
"Looking at the practicalities, however, I must bear in mind that, no matter what order I make, the French court will undertake an appraisal of this case if submissions are made to it, and I anticipate they will be. It will be for the French court to determine the welfare issue. It is not essential that Pierre is returned to France for that to be done."
82. With great respect to the judge, I do not think that this will do. In sensitive international cases relating to children, where the foreign court is plainly the right forum in which to decide the children's future, it is, in my judgment, incumbent on English judges, if they are not going to return the child or children in question, not only to ensure that they are not trespassing on the foreign court's jurisdiction, but also to explain clearly both why they have decided on that course of action, and why they take the view that it is not inconsistent with comity and international judicial co-operation. Thus, in a Hague Convention case to which the provisions of Brussels II Revised applies, McFarlane J needed, in my view, to explain clearly to the French court why he took the view that the course which he was taking was; (a) consistent with the philosophy of the Convention; and (b) that it was not inconsistent with the structure and philosophy of Brussels II revised.
83. It is, in my judgment, only too easy for different jurisdictions operating international conventions to retreat into their own national bunkers and refuse to return children who should be returned. I am not for one moment suggesting that this is what McFarlane J has done in the instant case: I am simply pointing to the danger, and the consequential need to take steps to ensure that the foreign court fully understands both why the English court has acted as it has done, and that its actions are not a reflection on the exercise by the foreign jurisdiction of its powers over the child.
84. For all these reasons, most of which chime closely with Thorpe LJ's judgment, I would allow this appeal and set aside the judge's order.
The chronology of the English proceedings.
85. I share Thorpe LJ's alarm and dismay at the unacceptably slow progress in England of the Hague Proceedings in this case. I am on record in a number of cases praising the speed with which Hague applications are customarily despatched in the High Court. Indeed, in Zaffino, I see that I said: -
" 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."
86. It is, accordingly, with a sense of both shock and dismay that I find the chronology in the instant case revealing that the proceedings under the Hague Convention which were launched by the mother on 23 September 2005 were not heard by McFarlane J until 13 February 2006, his judgment being given promptly on 15 February 2006 after overnight reflection following the end of the two day hearing on 14 February. There was no question in this case of the child's whereabouts being unknown, or any other reasons for the delay other than unavailability of court space and judicial time. That the proceedings took nearly 5 months to be heard is both shocking and unacceptable.
87. The matter is made worse, however, by the administrative delays in this court, which are equally unacceptable. The appellant's notice is dated 1 March 2006. The papers were not placed before Thorpe LJ until 4 April 2006, when he directed that the matter be listed as an application for permission to appeal with the appeal to follow if permission was granted. As is well known, this listing is designed to ensure an expeditious hearing. Counsel's convenience is not consulted, and an application so listed should be heard swiftly. It is therefore unacceptable that the application did not reach a hearing before 3 May 2006, notwithstanding the intervention of the Easter vacation.
88. Under paragraph 11(3) of Brussels II Revised, as Thorpe LJ has pointed out, proceedings for the return of a child must be completed in six weeks, "except where exceptional circumstances make this impossible". No such circumstances apply in the instant case. I therefore strongly endorse Thorpe LJ's observations on the procedural factors which must govern future applications under the Hague Convention and Brussels II Revised. Failure to adhere to the time-tables proposed will not only result in the English court being in breach of its international obligations; it will represent an unacceptable abnegation of the court's responsibility properly to address cases of international child abduction – a matter in which, in the past, we have taken legitimate pride.
89. As a judge of the Family Division for eleven years, I am acutely conscious of the pressures on the judiciary and on those with responsibilities for listing. Article 11(3) of Brussels II Revised, however, does not admit of debate. It simply must be implemented.