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Z v Z [2005] EWCA Civ 1012

Appeal against a judge’s exercise of discretion to refuse a return order under the Hague Convention allowed.

Z v Z [2005] EWCA Civ 1012

Court of Appeal: Thorpe, Wall and Neuberger LJJ (23 June 2005)

Appeal against a judge's exercise of discretion to refuse a return order under the Hague Convention allowed.

This appeal concerned to some extent all six children, aged between five and 14, of the parties. The family had lived in Canada, but the marriage broke down and the mother initiated proceedings in Canada for permission to relocate to the UK with the four youngest children; however, before any determination in those proceedings, the mother wrongfully removed the children to the UK.

The application for return under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction was swiftly initiated. At the summary trial, the mother raised a defence under Article 13 to the effect that the older two of the four children (aged 13 and 10) 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. The judge concluded, in respect of both children, that the objections were made good, and he exercised his discretion to refuse the return order.

On appeal, it was conceded on behalf of the father that the judge was entitled to find that the views of each child were of such a nature that they must be taken into account; however, it was submitted that, in the exercise of the resultant discretion, the judge was plainly wrong for a number of reasons: first, the judge had given insufficient weight to the spirit and purpose of the Convention and to the forum conveniens claim of the Canadian court; secondly, 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; and thirdly, 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.

The court reviewed the judge's assessment of the evidence that had been before him at the trial. It also considered the relevant case-law, including Re T [2000] 2 FLR 192, which had been accepted at the trial as being the leading authority on the proper exercise of the court's discretion once a child's objection had been substantiated.

Held, allowing the appeal, that, in the exercise of the discretion arising under Article 13, 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; accordingly, the judge unwittingly misdirected himself as to the proper approach and, for that reason alone, his refusal of return orders for the two children could not stand. The trial judge should have considered the views of all the children, as they are a cohesive group, and not just those of the two, before exercising his discretion.

Further, the court considered that Re T had little to say on the principles to be applied, and fully endorsed the approach expressed by Balcombe LJ in S v S (Child Abduction) (Child Objections) [1991] 2 FLR 492 and reiterated in Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716. Approval was also given to Balcombe LJ's judgment in Re S [1993] Fam 242 in which he said 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'.

Read the full text of the judgment here