The essence of a Hague Convention case

children and divorce

Appeals in the Court of Appeal are usually heard by three Lords Justices of Appeal. Normally, one will give a leading judgment, and the others will give either a dissenting judgment or a concurring judgment. The concurring judgment may simply be “I agree”, or it might go into a little more detail.

Sometimes it can be quite enlightening to read a concurring judgment where it does go into a little more detail, particularly when it is given by a Lord Justice who is not so experienced in dealing with family cases. Such judgments tend to go straight to the point, not getting bogged down in the technicalities.

Take, for example, the judgment of Lord Justice Davis in U-B (A Child), reported last Friday. This was a child abduction/ Hague Convention case in which the mother was appealing against the refusal of the court to order the return of her son to Spain, on the grounds of the child’s objections. The leading judgment was given by Lady Justice Black, who is of course highly experienced in family matters. Obviously, her judgment covered all of the relevant aspects of the appeal, which she dismissed.

However, Lord Justice Davis’s shorter judgment, comprising just eight paragraphs, captured I think the essence of these Hague Convention cases in general, and of this case in particular.

He began by setting out the essential purposes of the Convention: to secure the prompt return of children wrongfully removed or retained and to respect principles of comity. Whilst Article 13 of the Convention provides limited exceptions, the general rule is that the child should be returned to its home country forthwith.

Lord Justice Davis then explained that in 2003 the parents in the case had reached “a thoroughly sensible arrangement” in English family court proceedings, under which the child was to reside with the mother in Spain and have lengthy holiday periods with his father in England. The agreement had been incorporated into a ‘consent order’ (a financial order following divorce). Accordingly, when the mother put the child on a plane at Madrid in July 2013 for his usual summer holiday with his father in England, she naturally would have expected him to return a few weeks later in accordance with the consent order and the agreed arrangements. However, this did not happen, and the English court refused to order his return. “Imagine her feelings”, said the Judge. Quite.

Naturally, this led Lord Justice Davis to be concerned about the wider potential implications of such an outcome. He said:

“If there is to be a perception that children may not be returned, even after a short visit to a parent in England and even after prompt application made, parents may be reluctant even to agree the sensible kind of consent order made in this case in circumstances where consent orders are to be encouraged. Or parents may become increasingly reluctant to abide by the terms of such a consent order. Would the mother have put E on the plane at Madrid had she thought this might happen? She would not.

Again, one cannot disagree with this. What, then, led him to agree that the appeal should be dismissed? The answer is that Article 13 provides that the return of the child may be refused if a court finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Lord Justice Davis considered that the earlier judge had been entitled to make the findings that he made on this basis and, critically, said that the appeal court could not “be used as a vehicle for conducting in effect an entire rehearing in such circumstances”.

Further, he said, the judge could not be said to have overlooked or unduly downplayed the important factor of the underlying policy purposes of the Hague Convention on child abduction, as he expressly dealt with them and concluded that they were outweighed by the other circumstances:

“That, in a difficult case, was a conclusion which I feel unable to say he was disentitled from reaching.”

Accordingly, and notwithstanding his sympathy for the mother, he concluded that the appeal had to be dismissed.

Photo of the Hague by Rene Mensen via Wikipedia under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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