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Re H (Children) [2005] EWCA Civ 319

Judge’s consideration of ‘settled’ for the purposes of the Hague Convention 1980, and exercise of his discretion, upheld.

Court of Appeal: Thorpe, Potter and Sedley LJJ (1 February 2005)

Judge's consideration of 'settled' for the purposes of the Hague Convention 1980, and exercise of his discretion, upheld.

This case concerned the two younger children of a family that divided its time between the UK and Australia. In November 2003, the mother started separation proceedings in the county court, and obtained an order without notice preventing the father from removing the children from the jurisdiction and granting her interim residence; on the return date, the district judge accepted the father's cross-application for residence orders and also a specific issue order to enable him to return the children to Australia. In early 2004, the father and the two older children returned to Australia. A three-day hearing was arranged for October 2004.

Shortly before the October hearing, the father issued an originating summons under the Child Abduction and Custody Act 1985 seeking an order for the return of the younger children to Australia under the provisions of the 1980 Hague Convention. The Children Act proceedings were stayed by a Family Division judge, who directed that the evidence filed in those proceedings should stand in the child abduction application. At the subsequent hearing of the application by a different judge, the father's application for return was refused, on the basis that both children were settled in the jurisdiction, and that one of the children objected to return; however, permission to appeal was granted, on the finding that both children were settled within the context of Article 12 of the Convention.

The court considered the relevant provisions of the Convention, namely Articles 12, 13 and 18, and heard submissions of behalf of the father to the effect that: the judge should not have found these children to have been settled; the judge should not have found that one of the children objected to return; and, in any event, the judge should not have exercised his discretion as he did under Articles 18 or 13 in a plain case of forum shopping.

Held, dismissing the appeal, that the judge had made clear findings of fact, based on firm evidence, which could not be shaken, and he was clearly entitled to exercise his discretion in the way that he had. Moreover, this case was distinguished from others in which the court had vigorously upheld the objectives of the Convention by the fact that the father had resorted not to the Convention but to the courts of this country, pressing for a merits determination, both as to residence and as to future location, determinations which had to have regard to the welfare of the children as the paramount consideration.

Sedley LJ added a comment concerning submissions made on behalf of the father that, for Article 12 or 13 purposes, it should be necessary to ask the child how he or she would feel in various unwelcome or unexpected eventualities: the notion that it was requisite in a case like this to put to such a child a series of distressing counter-factual hypotheses of the kind envisaged by counsel seemed morally unacceptable and legally unsustainable.

Read the full text of the judgment