U-B (A Child) [2015] EWCA Civ 60

Posted on Tuesday, April 21st, 2015

A picure of Suzanne Foster a Law costs draftsman at Paramount Legal Costs LtdThis case concerned an appeal relating to an Application for the return of a child to Spain.  The child in question was E, who, at the time, was aged 14.  The child’s parents had separated when the child was approximately 18 months old.  Between the ages of three and 14, the child had lived with his mother in Spain, although he visited his father in England for extended holiday periods.  In the summer of 2014, the child had been visiting his father and had been due to return to Spain on 22nd August.  However, he refused to do so and remained in England.  The child’s mother therefore mother made an Application to the High Court for the return of the child to Spain.  His Honour Judge Bromilow refused to Order the child’s return on the basis that the circumstances fell within the child’s objection exception under Article 13 of the 1980 Hague Convention and that the appropriate exercise of his discretion was to refuse to make the Application.  The mother sought to appeal the decision, which was refused by the Court of Appeal.

 

In making his decision, HHJ Bromilow gave great weight to evidence given by CAFCASS, which assessed the child’s maturity and understanding.  The CAFCASS report concluded that the child’s maturity was consistent with his age and that he was able to understand both sides and accept that there were some positives to living in Spain, even though he did not want to live there.  HHJ Bromilow also emphasised that the child’s views must amount to an objection, i.e. more than a preference.  In considering this, the question he asked whether the child’s stance was ‘akin to a refusal’, which he answered in the affirmative.  The judge also considered the possibility of whether the child had been pressured or manipulated by the father.  In doing so, the judge paid particular attention to the clear affection which was expressed by the child towards his mother, which he believed indicated that no undue pressure was being exerted by the father. 

 

On appeal, the mother submitted that the judge had failed to apply the correct test in evaluating the child’s objections and that the judge had failed to exercise his discretion properly.  The Court of Appeal was reluctant to interfere with the exercise of discretion of the trial judge, stating that regard must be given to the timely manner in which cases involving children should be dealt with and that the Court must be realistic about what can be achieved in the time allowed and on the material available.  The Court of Appeal also emphasised the difficulty in explaining why one factor may outweigh another in reaching a decision.  It was sufficient for the trial judge to have had the relevant features in mind and to have balanced them in a way which was open to him.  On appeal, it was also considered that the trial judge had given proper consideration to the Hague Convention policy factors and had, in fact, referred to these expressly in his judgment.  The Court of Appeal therefore saw no reason to allow the mother’s appeal and upheld the trial judge’s decision. 

The full judgement can be read here

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