The mother sought the return of her children to France. Her summons had been dismissed after balancing the policy of the Convention against the strength of the child’s objection to return together with certain welfare considerations. The discretionary balance was weighted against the making of a return order.
Held: The appeal succeeded. The welfare considerations to which the Judge had given weight, including issues as to the disruption of the child’s life and education, were powerfully outweighed by ‘the policy of The Hague Convention, buttressed by the provisions of Brussels II Revised’.
Thorpe LJ asked if insufficient weight was given to to the French court process, which was fully seized to settle the child’s future. Had Brussels II Revised ‘raised the bar’ against the abductor to a level higher than was implicit in Zaffino? The father argued that, while Article 11 of Brussels II Revised informed the operation of The Hague Convention within the EU, the emphasis of protective measures in Article 11 related to a defence under article 13(b) of the Convention and nothing in the Regulation expressly applied to a defence of child’s objections. The position remained as in Zaffino.
Thorpe LJ set out the interrelationship of The Hague Convention and the Regulation and referred to the provisions for the Enforceability of Judgments contained in Articles 40 and 42, and to Article 60 which provides for the Regulation to take precedence over the Convention so far as any conflict is concerned and the welfare considerations underlying the Judge’s decision for non-return. They were the sort of considerations that Article 11(3) which provides for expeditious disposal of Convention applications, was designed to eliminate. One principal matter had founded the child’s objection and affected the Judge’s view, namely the child’s fear that he would not receive a fair hearing in France. This was given undue weight. ‘Therefore, in my view, this was not a case in which peripheral welfare considerations could be introduced into the discretionary conclusion. On the application for return the Judge had to weigh only the nature and strengths of PM’s objection against the policy of Brussels 2 Revised and the fact that the essential welfare investigations and decisions must be taken in France.’
On the submission of counsel for the husband that the provisions of the Regulation ‘raised the bar’ against an abductor above that set in relation to Hague Convention proceedings as stated in Zaffino. ‘Is my conclusion to be taken as an acceptance of Mr Scott-Manderson’s primary submission and therefore a conclusion of general application? I do not so intend, since I accept the submission of the respondents that Brussels 2 Revised is not to be taken to have achieved implicitly more than it has expressed. However, there can be little doubt as to the intention of the member states that opted for Brussels 2 Revised. The provisions relating to the return of abducted children were the most contentious and therefore the most difficult of resolution during the negotiation of Brussels 2 Revised. The resolution of the resulting impasse was the retention of the operation of The Hague Convention throughout the European region but with the fortification of what were seen, in the light of nearly 20 years of operation, as weaknesses or loopholes through which abductors were escaping. The fortifications were threefold: The emphasis on protective measures to nullify an Art 13(b) of The Hague Convention defence; The return of the case to the requesting state in the event of a refusal by the requested state; and automatic enforcement of return ordered throughout the region. The policy that underlies these provisions is clear and it is important that states bound by Brussels 2 Revised do not undermine its intended effect either in its interpretation or in its application in accordance with the stringent time limits stipulated.’
Wall LJ said that Zaffino was a restatement of well established principles and reaffirmed his observations in that case. Under the heading ‘The Brussels 2 Revised Dimension’: ‘I think there is some force in Mr Scott-Manderson’s first ground of appeal, namely that the Judge failed to give sufficient weight as to what he described as the ‘European factors’ deriving from the application of Brussels 2 Revised. It is of course true . . that for present purposes, while Art. 60 of Brussels 2 Revised gives it precedence over the Hague Convention, the only specific provision of Art. 11 which affects the implementation of Art. 13 of The Hague Convention (apart from the need, identified in Art. 11(3) for the proceedings to be concluded within 6 weeks) is Art. 11(4) which relates specifically only to a defence under Art. 13(b), which this is not. Mr Scott-Manderson was thus unable to derive direct support from Brussels 2 Revised in his efforts to rely on the protective measures available to PM in France.
Nonetheless, when the Court is considering the policy of The Hague Convention, I do not think it can shut its eyes to the fact that pursuant to Art. 11(8) the French court, in the event of an order for the non-return of PM, can subsequently require his return; and if it does so, the English authorities have no alternative but to comply.
I am, of course, far from saying that in a case to which Brussels 2 Revised applies, no child’s Art. 13 defence will ever, or should ever succeed. That this is manifestly not the case is clear from the terms of Art. 11(8) itself, which plainly envisages non-return orders being made. Nonetheless, in my judgment, when one is considering the policy of The Hague Convention in a case where there are active proceeding pending in the court of the child’s habitual residence, and where that court is plainly seized of all determinative welfare considerations, Art. 11(8) seems to me, at its lowest, a reinforcement of the policy of The Hague Convention, and thus falls to be considered in the exercise of discretion.’
Judges:
Lord Justice Thorpe Lord Justice Wall
Citations:
[2006] EWCA Civ 630, [2006] 2 FLR 1180
Links:
Statutes:
Child Abduction and Custody Act 1985
Jurisdiction:
England and Wales
Citing:
Confirmed – Zaffino v Zaffino 2006
The court considered the treatment of a child’s objections to being returned to a home country by an order under the Act. . .
Cited by:
Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Lists of cited by and citing cases may be incomplete.
Children, International
Updated: 06 July 2022; Ref: scu.241770