M (A Child)
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LADY JUSTICE ARDEN
- LORD JUSTICE McCOMBE
- LADY JUSTICE KING
Areas of Law
- Family Law
- Human Rights Law
- Public International Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case involved an appeal by the mother challenging a decision that refused the summary return of her son, K, to Hungary under the Hague Convention and Brussels II Regulation. The court initially found the child's stay in the UK was wrongful but refused the order for return based on K's expressed objections. The appeal was allowed, and the case was remitted to the Family Division for reassessment of K's views on returning to Hungary and whether to exercise discretion to refuse a summary return.
Judgment
Lady Justice King:
The appellant in this appeal is the mother of a boy, K, who was born on 15 June 2007 (14). By a Notice of Appeal dated 7 July 2014 the mother seeks to challenge a decision made on 16 June 2014, when Mrs Justice Roberts refused an application made by the mother pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (The Hague Convention), and Council Regulation (EC) 2001/2003 Brussels II(R) for the summary return of K to Hungary.
The judge found that whilst K had been wrongfully retained in the United Kingdom pursuant to Article 3 of the Hague Convention, a defence had been made out pursuant to Article 13 of the Convention, in that K objected to being returned to Hungary, he having attained an age and degree of maturity at where it was appropriate to take into account his views. The judge, having found that K objected to a going back to Hungary, then, in the exercise of her discretion, declined to make the Order for summary return sought by the mother.
In her Notice of Appeal the mother formulated six Grounds of Appeal, each of which identify alleged errors in the approach adopted by the judge in her application of the law in relation to the proper approach to an Article 13 defence of a child’s objections to returning to their country of habitual residence. The Notice of Appeal pleads in the alternative, that if the judge had properly concluded that K objected in Convention terms to such a return, she had thereafter been wrong in the exercise of her discretion to decline to order a summary return.
On 18 July 2014 permission to appeal was given by Black LJ.
On 18 September 2014 the father sought permission to cross-appeal on the ground that the judge had erred in finding that the father had wrongfully retained the child in the jurisdiction; as a consequence he pleaded, Article 3 was not engaged and the court had no jurisdiction to make the order sought by the mother for K’s summary return to Hungary. The father’s application for permission was listed to be heard together with the mother’s appeal.
Background
Both parties are Hungarian nationals. They married in 2000 and divorced in 2004. K is the only child of the marriage. Following the dissolution of the marriage, the parties agreed that K would reside with the father, which agreement was recorded in an Order made by the Szeged City Court on 22 January 2004. The Order provided for contact between the mother and K each Sunday from 10.00