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Re M (A Child) [2006] EWCA Civ 630

Mother’s appeal against judge’s refusal to order return of abducted child to France allowed.

Court of Appeal: Thorpe and Wall LJJ (18 May 2006)

Mother's appeal against judge's refusal to order return of abducted child to France allowed.

The child was born in August 1991. His parents (who were French) were not married but, following their separation in 2001, proceedings were initiated in France, and an order was made for joint parental responsibility, with residence to the mother and contact to the father.

In August 2005, during an agreed period of staying contact in France, the father removed the child to England, in breach of the mother's custody rights and of the orders of the French court. The mother applied at once to the French Central Authority and, in September, proceedings in England were issued under the Child Abduction and Custody Act 1985 (the 1985 Act) and the inherent jurisdiction. Following various listing delays, the trial took place in February 2006.

At the trial, the judge reviewed the relevant legislative provisions, namely the 1985 Act incorporating the 1980 Hague Convention on International Child Abduction (the Convention) and Council Regulation (EC) 2201/2003 (Brussels II Revised), and considered that the child's objection to return was made out. He then proceeded to the exercise of discretion, balancing the strength of the child's objections, together with certain welfare considerations, against the policy of the Hague Convention, and concluded that the discretionary balance was weighted against the return order.

On this appeal, the mother contended that the judge had failed to give sufficient weight to the French court process, since the French court was fully seised of the welfare case to settle the child's future; further, the judge should not have relied on the child's belief (instilled in him by the father) that justice would not be achieved in the proceedings in France and that he would not be involved in those proceedings.

For the father, it was argued that the judge had correctly applied Z v Z [2005] EWCA Civ 1012 and had carefully balanced all relevant considerations in arriving at his discretionary conclusion.

Held, allowing the appeal, that the judge had erred in the exercise of his discretion. Peripheral welfare considerations had wrongly been included in the discretionary conclusion, and the judge should simply have weighed the nature and strength of the child's objection against the policy of Brussels II Revised and the fact that the essential welfare investigations and decisions had to be taken in France.

For a child's objection to return to prevail over the policy of the Convention and Brussels II Revised, there had to be something in the facts of the case that took it out of the ordinary into the exceptional; this case contained nothing in the facts relating to welfare that warranted the judge exercising his discretion as he did.

The court drew particular attention to the delays that had occurred in the proceedings, and stated that the judge had not referred to the requirement for maximum expedition, or to the extent of the breach of Regulation 11(3) of Brussels II Revised (which requires proceedings for the return of a child to be completed within six weeks 'except where exceptional circumstances make this impossible'). At paras 44 to 46 of the judgment, the court made comments, approved by the President, concerning procedural factors governing future cases, such as the heading to be used for Brussels II Revised applications and the marking of court files with the 'hear-by' date, to assist in the expeditious hearing of such cases.

Finally, the court expressed the opinion that, in sensitive international cases relating to children, where the foreign court was plainly the right forum in which to decide the children's future, it was incumbent on English judges, if they were not going to return the child, not only to ensure that they were not trespassing on the foreign court's jurisdiction, but also to explain clearly both why they decided on that course of action, and why they took the view that it was not inconsistent with comity and international judicial co-operation.

Read the full text of the judgment here