Re HB (Abduction: Children's Objections)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Date | 1997 |
| Court | Family Division |
Child abduction – Child living with mother in Denmark – Visiting England to stay with father and wrongfully retained by father – Mother applying for child’s return – Judge ordering return despite child’s objections – Father seeking to comply with order but child refusing to return – Mother not seeking to enforce order for six months – Further delay by court – Child’s objections to return increasing – Whether judge’s original correct decision to disregard child’s objections should be reconsidered in light of future developments.
The parents had two children, a boy born in 1983 and a girl born in 1985. The parents divorced. The mother was given custody of the children and they went to live in Denmark. The father was granted contact. In 1996 at the end of a contact visit the father wrongfully retained the children in England. On 17 October 1996, in proceedings under the Convention on the Civil Aspects of International child Abduction (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985, despite the children’s objections, the judge ordered their return to Denmark. The father sought to comply with the judge’s order and, having made appropriate arrangements, took the children to the airport. The boy boarded the flight and returned to Denmark but the girl refused to do so. In November 1996 the matter was referred back to the judge who set a fresh deadline later that month but also asked the mother to confirm in writing whether, if the second attempt failed, she wished further attempts to be made to enforce the order. For lack of funds the mother did not come to England to collect the child, nor did she respond to the judge’s invitation. Further, during the following six months the mother was only occasionally in touch with the child. In May 1997 the mother commenced proceedings to enforce the order. The father did not reconstitute his legal team, saying that he could no longer afford to pay his legal aid contributions. The child instructed her own solicitor and on 12 June he applied for her to be joined as a party. Although the judge had directed that any further directions required with regard to the implementation of the order be referred to her, both the mother’s and the child’s applications were listed before another judge who gave leave for the child to be joined as a party and adjourned the mother’s application generally pending a proposed application by the child for leave to appeal the order made in October 1996.
However, due to a delay by the court, leave to appeal was not granted until October 1997. A further welfare report was requested from the welfare officer who had seen the child and given evidence at the original hearing. Since June 1997 the mother had totally failed to be in touch with the child in any way.
Held – In exceptional circumstances, where a child had been wrongfully removed or retained under the Hague Convention and, in a decision not open to criticism, a judge had ordered the child’s return notwithstanding the child’s objections, the Court of Appeal could reconsider the judge’s decision in the light of subsequent developments which constituted such significant changes as to counsel a finding that the child’s objections were sufficient to justify refusing the parent’s application under art 13 of the convention. On the facts, although at the time of the first hearing the welfare officer had assessed the child as being in the position of returning to her mother as going back to a primary carer who she loved, when the welfare officer saw the child in October 1997 she found that the child now expressed strong antagonistic views about the mother and an increased objection to return to her. The child presented a history of her own life to the welfare officer which could only have derived from sources hostile to the mother. The mother’s conduct between November 1996 and May 1997 amounted to something close to an abandonment of the convention order. Her failure to keep in touch with the child had contributed to the breakdown of the relationship between herself and the child. Therefore, in those exceptional circumstances, the appeal would be allowed and the matter remitted to the original judge.
Per curiam. (1) In Hague Convention cases there should be continuity of judicial management and it is important to avoid delay and ensure a target of six weeks between application and determination at first instance. It is no less important that a similar momentum should be achieved by the Court of Appeal in the event of an appeal.
(2) It is totally inappropriate in proceedings between parents for a child to become a party and to be embroiled in the litigation against one parent in the place of the other parent.
AppealFollowing the joinder of the child, C, to the proceedings, she appealed from the decision of Hale J ([1997] 3 FCR 235), whereby in proceedings between the parents under the Hague Convention, as set out in Sch 1 to the Child Abduction and Custody Act 1985, she ordered the return of C to her mother in Denmark. C refused to return and, as a result of delays by the mother in enforcing that order and of the court in hearing the mother’s belated application, C was still in England a year later. The facts are set out in the judgment of Thorpe LJ.
Joanna Hall (instructed by Griffiths Robertson) for the child.
Nicholas Carden (instructed by Collyer-Bristow) for the mother.
The father appeared as a litigant in person.
Cur adv vult
5 November 1997. The following judgments were delivered.
THORPE LJ(giving the first judgment at the invitation of Butler-Sloss LJ). On 17 October 1996 Hale J decided a Hague Convention application in favour of AHB (the mother) and against JFB (the father) (see the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33), as set out in Sch 1 to the Child Abduction and Custody Act 1985). Her order of that date was that the two children of the parents, A and C, be returned to Denmark on or before 1 November 1996 and that any further directions required with regard to the implementation of the order be referred to her. The judgment which she gave on that day was subsequently reported as Re HB (abduction: children’s objections to return) [1997] 3 FCR 235. The family history and the contending considerations that led to that conclusion in a difficult and finely balanced case are all set out in the report and it is therefore unnecessary...
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