Objections of the Child to a Return – Art. 13(2)
All three Lord Justices hearing the appeal agreed that the children should be returned forthwith, however, each member of the panel stressed different issues in arriving at that conclusion. Thorpe LJ, with whom Wall LJ was in agreement, focussed on the manner in which the trial judge approached the exercise of discretion once he had concluded that the exception in Article 13(2) had been activated. The trial judge had relied on previous court of appeal case law which indicated that where the objections of a child were accepted they should be acted upon unless there were countervailing factors. Thorpe and Wall LJJ drew attention to alternative authorities and indeed to contrasting elements of the same cases, albeit delivered by different Lord Justices, to argue that in the exercise of the discretion arising under Article 13 the court must rather balance the nature and strength of the child’s objections against both Convention considerations and general welfare considerations. Within the latter regard must also be paid to the potential consequences of the exercise of the discretion not to make a return order. Wall LJ affirmed that the principles of the Convention clearly outweighed the objections of the children. Thorpe and Wall LJJ further considered the manner in which the trial judge applied his discretion; in this he had considered the two children separately, starting with the older sibling. Wall LJ ruled that this was incorrect and that the exercise of discretion should not be made by treating each child in isolation. Thorpe LJ held that the trial judge should have started from the basis that it had been conceded that the abducting mother would return to Canada with the two younger children. Wall LJ further held that the trial judge had erred in his evaluation of the younger child’s objections. Thorpe LJ did not confirm this finding but did agree that the case in relation to the younger sibling had been raise above its proper level. Neuberger LJ expressed broad agreement with regard to the approach in which the discretion of the court should be exercised, but he refused to find that the trial judge had erred in adopting the proper approach in principle as to whether the younger child’s objections were of sufficient strength, as to the balancing exercises or in assessing the position of the older child in its entirety before considering the younger sibling. In allowing the appeal he relied on the fact, also identified by Wall LJ, that the essence of the older child’s case which was to be with her younger siblings and mother could only be achieved by returning since the mother had already accepted that she would have to go back as there was no exception applicable to the two youngest children who had been wrongfully removed.
Procedural Matters
It may be noted that the return application was processed in a most expeditious manner, with only two months elapsing between the wrongful removal and the appellate hearing.
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