UK – RE S – 1993

UK – RE S – 1993 (Return ordered) The mother and father went to England on scholarships, both are scientists. The mother refused to return the children after their time in England was over. The father applied for their return. The court ordered the children returned to Israel. The decision was up held on appeal.

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Re S (a minor) (abduction)[1993] 2 All E.R. 683
4 International Abduction [UK 1993]
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Re S (a minor) (abduction)

[1993] 2 All E.R. 683

COURT OF APPEAL, CIVIL DIVISION

16 Jun 92; 17 Jun 92; 07 Jul 92

<* page 683>

GLIDEWELL, BALCOMBE LJJ AND BOREHAM J

001 Minor – Custody – Rights of custody – Foreign custody
rights – Wrongful removal or retention – Discretion of court
to refuse to order immediate return of child – Exercise of
discretion – Parents entering into separation agreement
under which mother and child would live in France and father
would have unrestricted access to child – Mother removing
child to England – Father applying for return of child to
France – Child objecting to return – No evidence that return
of child to France would expose her to grave risk of
psychological harm – Whether child had attained age and
maturity at which it was appropriate to take account of her
views – Whether court could refuse to order return of child
to France even though return would not expose her to grave
risk of psychological harm – Child Abduction and Custody Act
1985, Sch I, art 13.

002 The child the subject of the proceedings was born in
1982 in England. Her parents met in Indonesia, married in
England and had since lived in Borneo, France and Norway
before returning to live in Paris in 1991. The father, who
was French, was a petroleum engineer whose work took him to
many parts of the world. The mother was English. The child
had attended French and English schools in Norway and France
but had never lived in England. She had a high IQ but also
suffered from slight dyslexia. She had long-standing
psychological problems which were manifested in speech
difficulties and the advice of psychologists and a speech
therapist was that she should be educated in her stronger
mother tongue, which was English. in 199 1 the parents
separated and signed an agreement in Paris, under which the
mother and the child would live in the family flat in Paris
while the father would live in the family home outside
Paris, would provide financial maintenance for the mother
and the child and would have unrestricted access to the
child. Three weeks later the mother unlawfully removed the
child from France and returned to England. The father
applied under art 12 of the Hague Convention on the Civil
Aspects of International Child Abduction (which had the
force of law in the United Kingdom by virtue of s 1(2) of
the Child Abduction and Custody Act 1985 and was set out in
Sch I thereco) for the immediate return of the child. The
judge heard evidence from <* page 684> the court welfare
officer that, when interviewed, the child had expressed the
strong view that she did not wish to go back to France
because she felt awkward and out of place at a French
school, that being forced to speak French brought on her
speech difficulties and that she felt much happier speaking
English and more at ease in England. The welfare officer
considered that the child was expressing her own views and
not those of the mother, and that she was sufficiently
intellectually developed to understand the situation.
Thejudge held that the child had attained an age and degree
of maturity at which it was appropriate for her views to be
taken into account and that in all the circumstances her
desire not to return to France was mature, rational and
based on genuine and cogent reasons. He dismissed the
father’s application. The father appealed, contending, inter
alia, that, in exercising its discretion under art 13 FN1 to
refuse to order the return of a child, the court could only
take into account and act on the child’s objections if it
was also shown that there was a grave risk that return of
the child would expose it to psychological harm or place it
in an intolerable situation within art 13(b).

003 Held -The court could exercise its discretion under
art 13 of the 1985 convention to refuse to order the
immediate return of a child to the country from which it had
been wrongfully removed solely on the basis that the child
objected to being returned and had attained an age and
degree of maturity at which it was appropriate to take
account of its views, without having to decide under art
13(b) whether the return of the child would expose it to
physical or psychological harm or otherwise place it in an
intolerable situation, since on the true construction of art
13 those two conditions for refusing the return of the child
were separate and unconnected. However, the court had to
exercise its discretion in the context of the convention,
which was that it was in the best interests of children
generally that they should be promptly returned to the
country from where they had been wrongfully removed, and
therefore it was only in exceptional cases that the court
should exercise its discretion to refuse to order an
immediate return. Whether a child was of sufficient age and
maturity for its views to be taken into account and what
weight to give to those views were matters for the court to
decide, in the light of the circumstances of the case. on
the facts, and in the exceptional circumstances of the case,
it was clear that the child’s reasons for objecting to being
returned to France had substance and were not merely a
desire to remain in England with the mother, and that she
had attained an age and degree of maturity at which it was
appropriate to take account of her views. it followed that
the appeal would be dismissed.

Notes

004 For the civil aspects of international child
abduction and the return of children wrongfully removed, see
1992 Supplement to 8 Halsbury’s Laws (4th edn) para 525A.

005 For the Child Abduction and Custody Act 1985, Sch Y,
art 13, see 6 Halsbury’s Statutes (4th edn) (1992 reissue)
313.

006 Cases referred to in judgment

A. (Minors), (Abduction: Custody Rights), In re
[19921 Fam. 106
[1992] 2 W.L.R. 536
[1992] 1 All E.R. 929, C.A.

G. v. G. (Minors: Custody Appeal)
[1985] 1 W.L.R. 647
[1985] 2 All E.R. 225, H.L.(E.)

Layfield v. Layfield (unreported),
6 Dec 1991, Australian Family Court

<* page 685>

M. (Minors), In re (unreported)
25 Jul 1990, unreported, Fam. D.

R. (A Minor: Abduction), In re
[1992] 1 F.L.R. 105

Wilson v. Challis (unreported)
19 Mar 1992, Ont. Ct (Prov Div).

007 Cases also cited or referred to in skeleton arguments

A. (A Minor) (Abduction), In re
[1988] 1 F.L.R. 365, C.A.

C. v. C. (Minor: Abduction: Rights of Custody Abroad)
[1989] 1 W.L.R. 654
[1989] 2 All E.R. 465, C.A.

N. (Minors) (Abduction), In re
[1991] 1 F.L.R. 413

P. v. P. (Minors) (Child Abduction)
[1992] 1 F.L.R. 155

S. (A Minor) (Abduction), In re
[1991] 2 F.L.R. 1, C.A.

Appeal

007 The father of a minor appealed against the order of
Ewbank J in chambers dated 17 January 1992 dismissing his
application under the Child Abduction and Custody Act 1985
for an order for the return of the child to France. The
facts are set out in the judgment of the court.

008 Patricia Scotland QC and Henry Setright (instructed
by Margaret Bennett) for the father.

009 Allan Levy QC and Brian Jubb (instructed by Taylor
Joymson Garrett, agents for Moore & Blotch, Southampton) for
the mother.

Cur adv vult

7 July 1992.

010 The following judgment of the court was delivered.

BALCOMBE LJ.

011 This appeal, from an order of Fwbank J made on 17
January 1992 whereby he dismissed an application under the
Convention on the Civil Aspects of International Child
Abduction (The Hague, 25 October ig8o; TS 66 (1986); Cm 33)
(the Hague Convention) for the return to France of a
nine-year-old girl, raises once again a question under art
13 of that convention.

012 The child, C, was born on 9 August 1982. Her mother
is English, aged 48; her father is French, aged 46. The
father is a petroleum engineer whose work takes him to many
parts of the world. The parents met in Indonesia, where the
mother was working as a secretary with the United Nations.
They married in England in 1979. When the mother became
pregnant with C (their only child) they were living in
Borneo.

013 The mother came back to England for her confinement
and spent a few months in England after C’s birth, but then
returned with C to the father in Borneo. In September 1984
the family moved to Paris, France. In September 1985 the
family moved to Harstad, Norway. In November 1986 the family
moved back to Paris, and C spent two months in a French
school. In February 1987 they moved to Stavanger, Norway.
From February to June 1987 C attended a French school in
Norway. From September 1987 until they left Norway in March
1991, C attended the Stavanger British School. In March 1991
the family returned to Paris as their home, where they lived
in a flat in the Place des Vosges; there is also a house at
Maisons-Laffitte, just outside Paris. Apart from the short
time after her birth, and for occasional holidays since, C
has never lived in England.

014 Unfortunately C has long-standing psychological
problems. These have manifested themselves in speech
difficulties-stammering and stuttering-and it was as a
result of the advice of a French speech therapist that C
should be educated in her stronger mother tongue (English)
that C was moved to the British School in Stavanger. This
advice has been confirmed by the reports of psychologists,
<* page 686> both French and English, which were put in
evidence by the mother. These reports show that C has a high
IQ and the mental age of a child of 12; she also suffers
from dyslexia, although the problem is not acute.

015 On the family’s return to Paris in March 1991, C was
sent to the local school near the flat in the Place des
Vosges, and she attended that school until the mother
brought her to England on 24 November 1991. A letter from
the headmistress of that school, addressed to c’whom it may
concern’, was also in evidence, from which it is clear that
C’s speech and other problems were very apparent to the
headmistress, and that C was also affected by the
dissensions between her parents. The marriage had been in
difficulty for some years, and by the autumn of 1991 the
parents were ready for a divorce. On the advice of their
lawyers they entered into a voluntary deed of separation,
which provided that the mother should live in the Paris flat
with C, while the father should live in the house at
MaisonsLaffittes, with an unimpeded right of access to C.
The deed made provision for the financial maintenance by the
father of the mother and C.

016 The deed was signed on 7 November 1991, and in
accordance with its provisions the father moved out of the
Paris flat on Saturday, 9 November 1991. On the same day he
gave the mother a cheque for 6,000 French francs,
maintaining that a third of the month had already elapsed.
Whether or not this was correct, the fact is that the mother
had run out of money by 22 November. The father refused to
give her more; the mother sold her rings for about œ250, and
she then decided to leave France with C. This she did on
Sunday, 24 November, and she came to England, to the
Southampton area where her family lives, to a house forming
part of the estate of her deceased mother and which belongs
beneficially to her sister and herself She immediately put C
into the local junior school and that position has continued
up to the present time.

017 On 20 December 1991 the father made an application
for the return of C under the Child Abduction and Custody
Act 1985, by which (see S I) the provisions of the Hague
Convention are incorporated into our domestic law, and it
was that application which came before Ewbank J on 15
January 1992, and which resulted in the order from which the
father now appeals.

018 Before the judge it was common ground (as it was
before us) that the mother’s removal of C was wrongful under
art 3 of the Hague Convention, and that prima facie the
court was bound to order the immediate return of C to France
under art 12. The issues before the judge were whether he
had a discretion not to order C’s immediate return under art
13 and, if so, whether he should exercise the discretion in
favour of allowing her to stay here.

019 The two grounds under art 13 upon which the mother
relied were: (i) under para (b), that there was a grave risk
that C’s return would expose her to psychological harm. The
judge rejected this ground and, although it was raised again
by the mother in her respondent’s notice on the appeal, as
well as an alternative ground under para (b) that C’s return
would place her in an intolerable situation, these grounds
were expressly abandoned before us by the mother’s counsel,
Mr Allan Levy QC. Accordingly we do not consider them
further. (ii) That C objected to being returned and had
attained an age and degree of maturity at which it was
appropriate to take account of her views. This was the
ground upon which thejudge relied in refusing to order Cs
return to France.

020 The mother’s affidavit was largely devoted to C’s
psychological problems and her learning and language
difficulties, but it included the following passage:

‘On many occasions [C] has indicated to me
that she does not wish to return to France …
[C] has expressed extremely strong feelings
about returning to France, and she has an age
and degree of maturity where it would be
appropriate to take accont of her views.’

<* page 687>

021 There was no independent evidence of C’s views, but
the judge was invited to see C. He took the view that it
would not be appropriate for him to do this, but he asked
the duty court welfare officer, Mrs Varley, to do so. Mrs
Varley had a long interview with C and gave her report
orally in evidence to the court. In view of the importance
of this report, we set out below the relevant passages from
the transcript of Mrs Varley’s evidence:

‘Mrs Varley: I saw [C], my Lord, in my office
on her own and I would say as a preamble that
she is a very fluent and sophisticated
conversationalist. It was very easy to
interview this child, so much so that she
would see the drift of my questions and
pre-empt them with an answer. I would sum up
what she said to me in her own words. She said
would I tell the judge really, really strongly
that she does not want to go back to France.
She does not want to go back to France because
she feels great in England, was how she put
it.

Ewbank J: She feels great in England?

Mrs Varley: Yes. She had obviously had a
miserable experience going to school in
France, from her own account. She said she
felt awkward and like a fish out of water at a
French school. She tried to illustrate that by
saying that “Two won’t go into seven”. That
was her way of illustrating that, that she
felt so out of place. She said that being
forced to speak French, she thought, brought
on her stammer which made her feel bad. She
illustrated on how going from France to a
holiday in England her stammer had almost
miraculously gone at the airport, and she sees
that as a sign of how much happier she feels
speaking English. She fell under pressure, she
said, from her father while she lived in
France to, I suppose, do some sort of remedial
work to catch up in the French school system
and so that was a sad experience for her too.
She made a very, very emotional plea that she
feels more at ease in England and she feels it
is more natural for her to speak English and
to be English.’

022 Then in cross-examination by Mr Setright:

Ewbank J: Did you have any feeling that the
view she was expressing was an impassioned
plea put into her mouth by her mother or was
she expressing her own views?

Mrs Varley: I certainly did not think they
were rehearsed, my Lord. She was able to
separate, when I led her that way, the
feelings of a parent and as a child. She could
appreciate that children are influenced by
their parents’views, but she seemed to feel
quite strongly that she was not.

Mr Setright: Did you think that she was
mature enough for her feelings to be taken
into account by the court?

Mrs Varley: Well, she is certainly
intellectually mature enough to know what the
situation is that she is in. Emotionally she
is still a child of that age. She is still
emotionally very fragile.

Mr Serright: But would you give weight
yourself to her views?

Mrs Varley: Yes, I would. I think she feels
very strongly a dread of going back to France
and she feels more comfortable in England.’

023 In the light of the arguments that were presented to
us by Miss Patricia Scotland QC, on behalf of the father, it
will be convenient to record that the mother, in her
evidence, accepted that it would be appropriate for C to
spend prolonged periods of staying access with the father in
France, and also to set out certain passages from the
father’s oral evidence. In evidence-in-chief he was asked:

‘Mr Setright: You have heard the oral report
of the court welfare officer this morning,
have you not?

The father: [No audible reply.]

Mr Setright: Is there anything that you want
to say about that, having heard it?

The father: No. I am happy to know anyway
that [C] is happy to be in England, this for
sure-is happy to be <* page 688> at an
English school rather than a French school. if
she is doing well, I am happy for her.

Mr Setright: But is it still your wish …

Ewbank J: I do not quite follow what you mean
by that- “if she is doing well, I am happy for
her”. You do not mean you are happy for her to
stay here?

The father: No. Because I still think that a
father/daughter relationship is much more
important than feeling better at school …

Mr Setright: You have already dealt with
accommodation. What education would be
available to [C]? Where would she go to
school?

The father: The French school was chosen
because it was conveniently 300 metres from
the flat. it was where our daughter had been a
couple of months before, four years ago.

Mr Setright: The same school that she had
been in some years before?

The father: That is right. But if she prefers
to go to [a] British school, if it is that
important, we can always try to find a
solution. Paris is a big town and there are
possibilities for [C] to go to a fully or
partly English-speaking school.

Mr Setright: Have you done any research into
that?

The father: I have contacted a British school
but it is not conveniently located for the
flat in Paris or the house in
Maisons-Laffitte.

Mr Setright: About how far away is it?

The father: I have made investigation and
they would be ready to accept our daughter
provided they have interview with the parents
before.

Mr Setright: How far away from the Place des
Vosges is that?

The father: I would say it is a good hour and
half’s travel one way.

Mr Setright: But there are other English
schools which you have not invesiigated?

The father: In Maisons-Laffitte there are
schools where there is possibility to follow
English even at a small age. There is an
Anglican church. There is Brownies. There is
quite a small active British community.

Mr Setright: So far as [C’s] future is
concerned, what language or languages had you
and your wife felt that she should speak? …

The father: It is important that she has both
British and French, so it is important that
she keeps both languages.

Mr Setright: Despite the stuttering
difficulty, does she speak French?

The father: Yes …

Mr Setright: In your view, and of course it
is only your view, knowing [C] and knowing
your wife and knowing the living circumstances
in France, do you think it would be very
distressing and difficult for [C] to come back
to France now?

The father: I would have said not but I was
probably somewhat shaken by the lady’s report
this morning.

Mr Setright: If she came back, is there
anything you think you could do to reassure
her?

The father: My daughter?

Mr Setright: Yes.

The father: For sure I will tell her that she
can count on me, that I love her. If she wants
to do something, if she wants to live in Place
des Vosges she can live in Place des Vosges.
If she wants to live in Maisons-Laffitte, she
can live in Maisons-Laffitte. I mean, this is
the only daughter that we have. We live for
our children and I do not want to do something
which can hurt her and. . . ‘

024 Subsequently the father gave evidence which seemed,to
indicate that he had not previously appreciated that C’s
problems were attributable to her having to speak French and
attend a French school. However, when the direct, question
was put to him, he answered in the following passage:

<* page 689>

Mr Serright: But you being a concerned
father, as you have made plain to this court,
so far as [C) being at a French school in
Paris is concerned, you have seen the report
from that school.

The father: True.

Mr Setright: In that report it shows or
indicates that [C] was not very happy?

The father: I am ready to try to find a
better school. What I would say, I think big
city centres are not the proper place to raise
children.’

025 We were also told that, in his final submissions to
Ewbank J, Mr Setright offered the following undertakings on
behalf of the father if C were returned to France: (i) the
father would allow the mother to remain in the flat in the
Place des Vosges separate and apart from him and to have
care and control of C; (2) C would go to an English-speaking
school; (3) the financial arrangements in the deed of
separation would continue.

026 The reasons for thejudge’s decision are contained in
the following passage from hisjudgment. After recording the
effect of Mrs Varley’s evidence, and mentioning Dr Hales’s
assessment of C’s mental age as being about 12, he said:

‘Accordingly, I have to decide whether the age
and maturity of [C] make it appropriate that I
should take account of her views. To some
extent, of course, I have to see what those
views are and what they entail. It seems to me
that the view she has put forward, looking at
the whole circumstances of her life, is a
mature and rational view which seems to be
based on genuine and cogent reasons. I would
go further and say I think it is probably in
her best interests. I am not entitled under
the Hague Convention to consider the best
interests of the child in the ordinary way,
but, in deciding whether the views are mature,
if they coincide with what seems to me to be
the best interests of the child, I am entitled
to take that into account in assessing her
maturity. In my view the view she has formed
is an intelligent and sensible decision.
Accordingly, I am in a position where I may
refuse to order the return on that ground.
Since my own preliminary assessment of the
case is that, at any rate, at this stage [C]
should remain in England with her mother. I
refuse to make the order under the Hague
Convention.’

027 The arguments which were addressed to us fell under
three distinct heads, although they were not so conveniently
separated in the submissions of counsel.

028 (1) The construction of art 13 so far as it relates
to the child’s objection to being returned. For convenience,
future references in this judgment to art 13 are to be taken
as referring only to that part of the article unless the
context otherwise requires.

029 (2) The establishment of the facts necessary to ‘open
the door’ under art 13.

030 (3) The factors relevant to the exercise of the
discretion under art 13 once the door is opened.

031 Before we turn to consider these arguments, it will
be convenient to set out the relevant provisions of art 13
as set out in Sch I to the Child Abduction and Custody Act
1985:

‘Notwithstanding the provisions of the
preceding Article, the judicial or
administrative authority of the requested
State is not bound to order the return of the
child if the person, institution or other body
which opposes its return establishes that —

(a) the person, institution or other body
having the care of the person of the child was
not actually exercising the custody rights at
the time of removal or retention, or had
consented to or subsequently acquiesced in the
removal or retention; or (b) there is a grave
risk that his or her return would expose the
child to physical or psychological harm or
otherwise place the child in an intolerable
situation.

<* page 689>

The judicial or administrative authority may
also refuse to order the return of the child
if it 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 its views. . .

The construction of art 13

032 It will be seen that the part of art 13 which relates
to the child’s objections to being returned is completely
separate from para (b), and we can see no reason to
interpret this part of the article, as we were invited to do
by Miss Scotland QC, as importing a requirement to establish
a grave risk that the return of the child would expose her
to psychological harm, or otherwise place her in an
intolerable situation. Further, there is no warrant for
importing such a gloss on the words of art 13, as did
Bracewell J in Re R (a minor: abduction) [1992] 1 FLR 105 at
107-108:

‘The wording of the article is so phrased that
I am satisfied that before the court can
consider exercising discretion, there must be
more than a mere preference expressed by the
child. The word “objects” imports a strength
of feeling which goes far beyond the usual
ascertainment of the wishes of the child in a
custody dispute.’

033 Unfortunately Bracewellj was not referred to the
earlier decision of Sir Stephen Brown P in Re M (minors) (25
July 1990, unreported), in which he rightly considered this
part of art 13 by reference to its literal words and without
giving them any such additional gloss, as did Bracewell J in
Re R (a minor) (abduction)

034 As was also made clear by Sir Stephen Brown P in Re M
(minors), the return to which the child objects is that
which would otherwise be ordered under art 12, viz an
immediate return to the country from which it was wrongfully
removed, so that the courts of that country may resolve the
merits of any dispute as to where and with whom it should
live: see, in particular, art 19. There is nothing in the
provisions of art 13 to make it appropriate to consider
whether the child objects to returning in any circumstances.
Thus, to take the circumstances of the present case, it may
be that C would not object to returning to France for
staying access with her father if it were established that
her home and schooling are in England, but that would not be
the return which would be ordered under art 12.

The establishment of the facts necessary to ‘open the door’
under art 13

035 The questions whether (i) a child objects to being
returned and (ii) has attained an age and degree of maturity
at which it is appropriate to take account of its views are
questions of fact which are peculiarly within the province
of the trial judge. Miss Scotland submitted that the child’s
views should not be sought, either by the court welfare
officer or the judge, until the evidence of the parents has
been completed. We know of no justification for this
submission. She also asked us to lay down guidelines for the
procedure to be adopted in ascertaining the child’s views
and degree of maturity. We do not think it is desirable that
we should do so. These cases under the Hague Convention come
before the very experienced judges of the Family Division,
and they can be relied on, in those cases where it may be
necessary to ascertain these facts, to devise an appropriate
procedure, always bearing in mind that the convention is
primarily designed to secure a speedy return of the child to
the country from which it has been abducted.

036 It will usually be necessary for the judge to find
out why the child objects to being returned. If the only
reason is because it wants to remain with the abducting <* page 691> parent, who is also asserting that he or she is
unwilling to return, then this will be a highly relevant
factor when the judge comes to consider the exercise of
discretion.

037 Article 13 does not seek to lay down any age below
which a child is to be considered as not having attained
sufficient maturity for its views to be taken into account.
Nor should we. In this connection it is material to note
that art 12 of the UN Convention on the Rights of the Child
(20 November 1989; TS 44 (1992) Cm 1976) (which has been
ratified by both France and the United Kingdom and had come
into force in both countries before EwbankJ’s judgment in
the Present case) provides as follows:

‘1 States Parties shall assure to the child
who is capable of forming his or her own views
the right to express those views freely in all
matters affecting the child, the views of the
child being given due weight in accordance
with the age and maturity of the child.

2. For this purpose, the child shall in
particular be provided the opportunity to be
heard in any judicial and administrative
proceedings affecting the child, either
directly, or through a representative or an
appropriate body, in a manner consistent with
the procedural rules of national law.’

038 In our judgment, no criticism can be made of the
decision by Ewbank J to ascertain C’s views or of the
procedure which he adopted for that purpose. There was
evidence which entitled him to find that C objected to being
returned to France and that she had attained an age and
degree of maturity at which it was appropriate to take
account of her views. Those are findings with which this
court should not interfere.

The exercise of the discretion under art 13

039 The scheme of the Hague Convention is that in normal
circumstances it is considered to be in the best interests
of children generally that they should be promptly returned
to the country whence they have been wrongfully removed, and
that it is only in exceptional cases that the court should
have a discretion to refuse to order an immediate return.
That discretion must be exercised in the context of the
approach of the convention-see Re A and anor (minors)
(abduction: acquiescence) [1992] 1 All ER 929 at 942, [1992]
Fam 106 at 122 per Lord Donaldson MR.

040 Thus if the court should come to the conclusion that
the child’s views have been influenced by some other person,
eg the abducting parent, or that the objection to return is
because of a wish to remain with the abducting parent, then
it is probable that little or no weight will be given to
those views. Any other approach would be to drive a coach
and horses through the primary scheme of the Hague
Convention. Thus in Layfield Y Layfield (6 December 1991,
unreported) in the Family Court of Australia Bell J ordered
an 11-year-old girl to be returned to the United Kingdom
because he found that, although she was of an age and degree
of maturity for her wishes to be taken into account, he
believed that those wishes were not to remain in Australia
per se, but to remain with her mother, who had wrongfully
removed the girl from the United Kingdom to Australia. On
the other hand, where the court finds that the child or
children have valid reasons for their objections to being
returned, then it may refuse to order the return.

041 Thus in Re M (minors) (25july 1990, unreported) the
court refused to order the return of three children aged 11,
9 and 8 to America. In the course of his judgment Sir
Stephen Brown P said:

<* page 692>

‘I am, however, concerned for the children. I
find that they do object to being returned and
that each of them has attained an age and a
degree of maturity at which it is appropriate
to take account of their views. I feel that I
must take account of their views. Their views
are not, however, determinative of the
position and I have to consider how far they
should affect me. I feel that I should give
effect to their objection in this case in the
light of the fact that they give valid
reasons, in my judgment, for objecting to
going back to America into the case of their
father, because of his former conduct. I
consider that he has materially admitted this.
I do not, therefore, propose to order their
return. That is the sole extent of the order
that I make. I do not determine custody rights
or access rights or any other rights as
between the parties. But in the light of the
children’s objections to being returned, I
decline to order their return under the terms
of the convention and the provisions of the
Child Abduction and Custody Act 1985.’

042 A similar result was reached in the Canadian case of
Wilson v Challis (19 March 1992, unreported), where Foran J,
sitting in the Ontario Court (Provincial Division) and
following the decision in Re M (minors), refused to order
the return of an 11-year-old boy to his father in England
for what appeared to be good and valid reasons.

043 In the present case C objected strongly to being
returned to France. Her reasons, as given to Mrs Varley, had
substance and were not merely a desire to remain in England
with her mother. This court cannot interfere with the
judge’s exercise of his discretion unless he took into
account some irrelevant factor, left out of account some
relevant factor or was plainly wrong-see G v G [1985] 2 All
ER 225, [1985] 1 WLR 647. It could not seriously be
suggested that Ewbank J took into account an irrelevant
factor. However, he did not, in the course of his judgment,
mention the father’s undertaking that if C were returned to
France she could attend an English-speaking school. Since
this undertaking had been offered by Mr Setright on behalf
of the father in the course of his final submissions to the
judge, it is impossible that the judge was unaware of it. It
might have been preferable if he had made express reference
to it in his judgment, but we are quite unable to say that
he failed to take it into account. The judge may well have
found it surprising that the father was unaware of Cs
distress at attending a French school until he heard Mrs
Varley’s evidence, and he may have considered the father’s
proposals to send C to an English-speaking school in Paris
somewhat imprecise and by no means fully considered. In
these circumstances we are quite unable to say that his
decision to return C to France, even having regard to the
fathees undertakings, was plainly wrong.

044 Nothing which we have said in this judgment should
detract from the view, which has frequently been expressed
and which we repeat, that it is only in exceptional cases
under the Hague Convention that the court should refuse to
order the immediate return of a child who has been
wrongfully removed. This is an exceptional case and
accordingly we dismiss this appeal.

045 Appeal dismissed. No order as to costs.

L I Zysman Esq Barrister.