13 JAN 2015
Case Summary No.2: Re: M (A Child)  EWCA CIV 1519
Court of Appeal considers the use of expert evidence on foreign law in Hague Convention proceedings and the defence of child objection to a summary return. The appeal was granted and the proceedings remitted for re-hearing.
The court was concerned K the only child of the parties of Hungarian descent. On 22 January 2004 an Order of the Hungarian court recorded the parent’s agreement K would reside with the father with agreed contact for the mother. On 6 December 2013 brought to England by his father without the permission of the mother.
The mother having had no contact since November 2013 sought to enforce her rights in the Public Guardianship Office in Hungary failing which she issued Hague proceedings for the summary return of K on 7 April 2014. The father raised sought to defend the application on the basis of alleged consent and child’s objections.
On 9 June 2014 the judge held the father had wrongfully retained the child in England under Article 3 of the Hague Convention despite his attempt to regularize K’s residence in England through the Hungarian courts. The court, however, declined to order a return having found K objected under Article 13 of the Hague Convention.
The Court of Appeal considered the mother’s appeal against the approach adopted by the judge in considering the child’s objection and, in the alternative, the exercise of discretion to decline K’s return. The father unsuccessfully cross-appealed the judge’s finding the child had been wrongfully retained in England.
The judge considered firstly whether K had raised an Article 13 objection and secondly if the judge should exercise her discretion and refuse to order a return.
The Court of Appeal considered the evidence of K’s interview with a Cafcass officer demonstrated that:
(i)K was highly distressed and emotional during the 45 minute interview with an interpreter. K was unable to give an account of his life in Hungary.
(ii)K preferred to stay with his father with whom he had lived since 4 years old. It was unclear if K objected on the erroneous belief a return would separate him from his father.
(iii)K did not say he objected to return to Hungary.
(iv)K appeared to be a child possibly experiencing divided loyalties.
(v)The father gave untested evidence that K was deeply distressed at the time a location order was executed.
The Court of Appeal held on this basis the judge had insufficient material to amount his preference to an objection in Hague Convention terms. As the court had limited evidence to assess whether K objected to returning to Hungary the court ordered a rehearing.