S (A Child) (Habitual Residence and Child's Objections)(Brazil)

This appeal is in relation to orders made by Hogg J in proceedings brought under the Hague Convention 1980 and the inherent jurisdiction of the High Court seeking the return of a child to Brazil. It revolves around (1) the question of the child’s habitual residence and (2) whether she should be returned to Brazil notwithstanding her objections. Hogg J decided that, at the material time, the child was habitually resident in England. It followed that it was not wrongful for her not to be returned to Brazil following a holiday here this summer. Hogg J nevertheless went on to consider how she would have exercised her discretion had this been a case of wrongful retention, concluding that it would not have been appropriate to return the child in any event.

The child concerned is G. She was born in June 2002 and is 12. G has the benefit of a CAFCASS guardian, Mr Power, and her own legal representation in this court, as at first instance.

The applicant for the Hague return order was G’s mother (M) who is the appellant in this court. The return was resisted by G and her father (F) who both now oppose M’s appeal.

G’s brother, J, is 10. He is not the subject of these proceedings but he is material to them.

I will restrict my recitation of the facts to that which is essential to deal with the issues in the appeal, although considerably more detail is contained in Hogg J’s clear and sensitive judgment.

M is Brazilian. F is British. M met F in this country in the early 1990s and had her home here until 2013, although holidays were spent annually in Brazil. Until the events which I am about to describe, the children’s lives were in England.

The parents’ marriage ended in 2011 and in May 2012, F left the matrimonial home. He had begun a relationship with another woman in circumstances which were particularly hurtful for M and difficult for G. M wished to return to her native country with the children. In January 2013, she applied for permission to relocate there permanently with them. An independent social worker was instructed to investigate the children’s situation. As Hogg J summarised it, “she reported indicating that the children were prepared to go to Brazil with their mother because partly they, G in particular, knew the mother very much wanted to go back”. F was resistant to relocation but ultimately agreed to it. An order was made by consent in mid June 2013.

M and the children departed for Brazil on 1 August 2013. They took very little with them. There does not seem to have been any dispute about F’s description of the house as he found it after they had gone, including the fact that it looked as though the children’s rooms had hardly been touched.

M and the children went to live in an apartment owned by one of M’s sisters. The children soon started at an independent fee-paying school. They had a fortnight’s holiday with F in England in January 2014 during their school holidays. Following this, they were very upset for a period because they were missing their father and their home life in England.

Financial provision following the divorce was not agreed until July 2014 and the children were aware of the dispute between their parents about it. In the period before agreement was reached, F paid for the school fees and paid M a sum for the support of herself and the children. There was a financial dispute resolution hearing (FDR) in February 2014 for which M came over here. The aftermath of the failed FDR is important. M wrote an email about the finances to F at the beginning of March, unhelpfully copying it to the children. G read it. She wrote her own email to F dated 22 March 2014. One of its themes was finance and G’s perception that F was not providing the money he should have been providing, with the result that she was not able to live the same sort of life as her friends. Another theme was her hurt and anger towards those involved in her parents’ separation and her wish to have her “old daddy” back. It included the following passages:

“I am super happy in my school but when I found out you don’t want to pay for it I felt so upset. This is the first time I feel like I belong, I have made lots of friends and everyone is inviting me to their houses, parties etc….. I never want to change school and if you don’t give mummy money I don’t think I want to see you in Easter [sic] as I will be too angry to see you. If I have to move school I will never see you or talk to you ever again.”

“I am passing all of my tests and I am super happy in my school that I have a smile on my face all the time whether it’s my friends making us laugh or if it’s just that I feel so lucky that I have an aunt who bothers caring for us.”

F and the paternal grandmother replied to G by email. There was then a period from the end of March until June 2014 when there was no contact between F and G. Hogg J thought that this was probably a consequence of the emails and the difficulties over finances. J kept in contact with F for a bit longer but that stopped as well at the end of April or beginning of May. F was due to come over to see the children in April but was unsure that they would be prepared to see him and cancelled the trip (see, for example, his email at D113).

When the summer holidays came, the plan was for the children to spend time with F in Europe. Hogg J described how F went to the airport not knowing for certain whether the children would arrive but they did. There was what the judge described as a “complete reunion”.

There followed a holiday in France at which various reconciliations took place. During it G had time to reflect without, as Hogg J put it, “any influence” from M. She decided that she did not want to go back to Brazil and told F this on 24 July 2014. He told her to sleep on her decision. G spoke and wrote to M, who was in England for the financial proceedings, and told her that she did not want to return to Brazil.

Hogg J quoted extensively from the emails that G wrote at this time, from which she concluded that G was not saying she wanted to be with F rather than M, but that she wanted to be in England and not in Brazil. She took the view that G argued her case to M in a mature, rational way.

When M went back to Brazil, J went with her at his own choice. G did not return. On 30 July 2014, therefore very promptly, M began the Hague proceedings.

G met Mr Power of CAFCASS for discussions on three occasions during the currency of the proceedings, as well as at court. Mr Power addressed G’s objections to returning to Brazil and her maturity in that context, and also, on a separate occasion, her earlier state of mind in case it might be relevant to the question of where she was habitually resident towards the end of July 2014. Hogg J had the benefit of two reports from Mr Power and he also gave oral evidence at the hearing. We have a transcript of that evidence. Both parents also gave evidence.

Hogg J’s reasoning for her conclusion that G was not habitually resident in Brazil can be seen from the following passages in her judgment:

“38.

I have to ask myself, did she integrate into Brazil? On the surface she seems to have done so. She went to school; she is a compliant, co-operative child, she did well at school, she had friends, she had a social life but her state of mind was that of starting off with reservations, nagging doubts, thinking of home. Home not being where she sleeps but where she felt she belonged. Home was England. She has told her mother and in her own words she made it clear what her feelings were and she has remained consistent to that.

39.

I have come to a clear view that she did not acquire habitual residence in Brazil. I have no doubt the mother has. In this particular case, an unusual case with this child’s strong feelings and sense of being English, is such that she did not acquire integration into Brazil [sic]. Did she lose her habitual residence in England? That has been a question that I have considered and it has troubled me. In many cases people fly off to another country, emigrate and as they fly they automatically lose their habitual residence. This is a child that went because adult decisions had been made and she knew her mother wanted to go but she had reservations. Those reservations prevented her adapting, and feeling at home in Brazil. I do not think she lost her habitual residence in this country. I think she retained it, notwithstanding the mother lost hers. I think she is still habitually resident here and has always been so.”

Hogg J’s approach to the habitual residence question largely reflected that which emerges from recent cases and in particular from In the Matter of A (Children) [2013] UKSC 60 (Re A)and In the matter of LC (Children) [2014] UKSC 1 (Re LC).

She quoted from [54] of Re A which, for the sake of convenience, I will replicate here in full, italicising the passage that the judge quoted:

“[54] Drawing the threads together, therefore:

i)

All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

ii)

It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

iii)

The test adopted by the European Court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.

iv)

It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

v)

In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.

vi)

The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

vii)

The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

viii)

As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.”

It may also be helpful to include here the rather fuller recitation of the test for habitual residence contained in Case C 523/07 Proceedings Brought by A [2009] ECR I 2805:

“[44]….the concept of ‘habitual residence’ under Article 8(1) of the Regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.”

Hogg J also quoted from [37] of In the matter of LC (Children) [2014] UKSC 1 which again I will cite in full:

“37.

Where a child of any age goes lawfully to reside with a parent in a state in which that parent is habitually resident, it will no doubt be highly unusual for that child not to acquire habitual residence there too. The same may be said of a situation in which, perhaps after living with a member of the wider family, a child goes to reside there with both parents. But in highly unusual cases there must be room for a different conclusion; and the requirement of some integration creates room for it perfectly. No different conclusion will be reached in the case of a young child. But, where the child is older, in particular one who is an adolescent or who should be treated as an adolescent because she (or he) has the maturity of an adolescent, and perhaps also where (to take the facts of this case) the older child’s residence with the parent proves to be of short duration, the inquiry into her integration in the new environment must encompass more than the surface features of her life there. I see no justification for a refusal even to consider evidence of her own state of mind during the period of her residence there. Her mind may – possibly – have been in a state of rebellious turmoil about the home chosen for her which would be inconsistent with any significant degree of integration on her part. In the debate in this court about the occasional relevance of this dimension, references have been made to the “wishes” “views” “intentions” and “decisions” of the child. But, in my opinion, none of those words is apt. What can occasionally be relevant to whether an older child shares her parent’s habitual residence is her state of mind during the period of her residence with that parent. In the Nilish Shah case, cited above, in which he propounded the test recently abandoned, Lord Scarman observed, at p 344, that proof of ordinary (or habitual) residence was “ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind”. Nowadays some might not accept that evidence of state of mind was not susceptible of objective proof; but, insofar as Lord Scarman’s observation might be taken to exclude the relevance of a person’s state of mind to her habitual residence, I suggest that this court should consign it to legal history, along with the test which he propounded. ”

Hogg J treated G as a child whose perception was relevant to the question of habitual residence. She commenced her consideration of the facts that were germane to habitual residence as follows:

“33.

The mother in this case wanted to return to her homeland to live following the divorce at a time when she was deeply distressed and upset. That is why the children went to live in Brazil, for no other reason. She obviously wanted to take her children and the father ultimately consented. I have to look at what is/was going on in G’s mind.”

She treated as relevant that the children were British nationals and had been brought up here, integrated into their home and their environment and with a large family around them. They knew Brazil and had good holidays there but they had never lived there. She noted that G had gone to school in Brazil but said G encountered difficulties with some people at school, finding it difficult to keep up with wealthier friends and being teased about the way she spoke English. The judge said that she “floundered” but also that:

“She did have friends. Nobody denies that. She did have a social life. She saw her mother’s family and they enjoyed trips to the beach and other events.”

She noted that G said that throughout she had nagging doubts, felt she was English, missed F and missed her home. She said that G “gave it her best” in Brazil because she loves M and knew that M wanted to be in Brazil and that G had told Mr Power that she could not tell M when she became upset about missing England because it would upset M.

Mr Harrison QC who, with Ms Perrins, represents M on the appeal, argues that Hogg J was wrong, for various reasons, to allow G’s “nagging doubts” to determine the question of habitual residence. Even if they were capable of having a bearing on the issue, which he argues they were not, he submits that they were easily outweighed by the other relevant circumstances. He submits that Hogg J’s focus was too narrow and that she should have taken into account or given greater weight to:

This argument provoked in response a careful listing of the material that could be said to point in favour of the judge’s conclusion, by Ms King on behalf of G who drew heavily on the evidence of Mr Power, and by Mr Setright QC and Ms Chokowry on behalf of F. In addition to the matters to which the judge referred in the section of her judgment dealing expressly with habitual residence, further features were identified which might point to the family’s situation being insecure, unstable or transitory, and would have impeded an already troubled G from achieving a sense of permanency and belonging and from integrating. They included:

I am conscious that we should not interfere readily with a conclusion such as Hogg J reached on what is a question of fact. I have borne in mind that she heard evidence from Mr Power and the parents and met G, although the purpose of such a meeting between the judge and the child is expressly not for the purposes of gathering evidence and Hogg J was very careful not to overstep this mark.

Mr Power was able to give relevant evidence about his discussions with G about Brazil. However, he met G for the first time after she had come firmly to the view that she did not wish to return to Brazil. In his first report, he commented that she “pointedly did not emphasise to me her experience of social integration because she came to see me on a mission to remain in the UK” ([39] E7). What she said to him about how she felt in Brazil is not, of course, to be discarded but it must be approached with caution and compared with the contemporaneous evidence of her state of mind whilst she was there. Mr Power spoke of G’s views having changed over time. As he put it at E70 in his oral evidence, he thought her wishes and feelings “vacillated up until the point of….the French holiday”. In his second report he described the holiday in France as “a turning point for G” ([22] E14) and said that her state of mind “crystallised in France this summer” ([37] E16) and that ([39]):

“The holiday in France…..was, from G’s point of view iconoclastic. That experience shattered G’s belief in her mother and caused her to overtly switch allegiances with the black and white fervour and certainty of a 12 year old girl.”

I note that, as Ms King pointed out, Mr Power spoke there of G having “overtly” changed her allegiances which might imply that her underlying allegiances had always been with F. That notion does not, in my view, survive an examination of the contemporaneous indications as to G’s state of mind, as opposed to the impressions given by her when discussing matters subsequently.

For reasons I will explain, in my judgment, Hogg J did not attach sufficient importance to the contemporaneous material in reaching the conclusion that G had doubts about the move to the extent that it could be said that the degree of integration in a social and family environment in Brazil required for habitual residence was absent.

The judge found that on the surface G seemed to have integrated. That was an important finding and well supported by the evidence. Although the move was not a move of G’s own choosing, she was carefully consulted about it, she agreed to it, and she moved to Brazil willingly. She did so on what she knew was intended to be a permanent basis, with a mother and brother who did become habitually resident there despite outstanding issues over finances, a lack of permanent housing and the like. She stayed there for 10 months. She missed F after the January holiday, but the time spent in England then was a holiday interlude, after which she took up her day-to-day life in Brazil again.

G’s email of 22 March 2014 and the subsequent lack of contact between her and F are significant, in my view, in indicating what her state of mind was by that point. It was essential, I think, for Hogg J to deal expressly with these features of the history, perhaps in particular the email, because they had the potential to influence the assessment of where G was habitually resident. Unfortunately, she did not evaluate their implications in this respect. When she referred to the email at [16] of the judgment, she concluded that difficulties about money, about possibly not being able to continue at school, and about accommodation, were “destabilising”, but she made no reference to G’s positive remarks about feeling “super happy” and feeling she belonged for the first time. This was a significant omission because these were matters that went to the question of the existence and extent of G’s “nagging doubts” which were what led the judge to the view that G was not integrated in Brazil, despite it appearing outwardly that she was. At the very least, the email reveals that G’s allegiance at that time was to M, not to F whom she was berating. That is confirmed by the hiatus in her relationship with F which followed the email exchange with him and lasted until the summer holiday. There is no hint in the email of G contemplating a return to live in England; her concern is to stay at the school she is attending and for F to provide sufficient money for the family to live comfortably in Brazil. Given that the email appears to have been born of G’s involvement in the financial dispute between the parents, it has to be treated with appropriate reserve, but it would be wrong to dismiss her references to being happy and feeling she belonged which, to my mind, rock the foundations of the idea that she had nagging doubts of a type that could materially undermine the process of integration in Brazil.

When I take these indicators of the position in the spring and early summer of 2014 together with the whole picture of the move and G’s connections with and life in Brazil, I am driven to the conclusion that Hogg J was wrong to find that G was habitually resident in England throughout. Such nagging doubts as she had did not interfere with the process of integration in Brazil and the position “on the surface” represented the reality. I would allow M’s appeal in relation to habitual residence, set aside Hogg J’s determination on the point, and replace it with a finding that G was habitually resident in Brazil at the material time, namely July 2014.

I have dealt with the question of habitual residence assuming, without deciding, that G was of an age and/or stage of maturity to come within the class of children whose state of mind the Supreme Court in Re LC contemplated may influence their habitual residence. I have also proceeded upon the basis that “nagging doubts” could in theory be material to that issue, equally without deciding the point. In other words, where the parties were in debate over the implications of Re LC for this case, I have assumed the position which was most favourable to F and G, who relied upon G’s state of mind as good reason for Hogg J to find as she did. Even leaning as far in their direction as Re LC could require or permit, I reached the clear conclusion that G was habitually resident in Brazil. In the circumstances, I do not therefore propose to say anything further on the arguments that were advanced about the reach of Re LC.

It was not in dispute that if G was habitually resident in Brazil in July 2014, there was a wrongful retention in the terms of Article 3 of the Hague Convention and Article 12 obliged the court to return G to Brazil forthwith unless an exception was established. Although, at the hearing before Hogg J, there was some argument about Article 13b), the relevant exception for our purposes is the child’s objections exception.

This exception is conventionally approached in two stages. There is no dispute about the first stage here; G objects to being returned to Brazil and is of an age and degree of maturity at which it is appropriate to take account of her views. The second stage is for the court to exercise its discretion in determining whether or not to order a return and that is where the dispute centres in this case.

Mr Harrison QC for M seeks to persuade us to approach the question in a way which would, in my view, involve a departure from the established approach which has applied since the decision of the House of Lords in In re M and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55 [2008] 1 AC 1288 (Re M: Zimbabwe). In their skeleton argument, he and Ms Perrins submitted that “in the context of the 1980 Hague Convention discretion the most relevant welfare considerations are those relating to the question of forum” or, putting it another way, that the “focus of the ‘best interests’ analysis should be forum, rather than long-term welfare issues”. In oral argument, this developed, it seemed to me, into a submission that the welfare factors that the court could consider at the discretionary stage were confined, or virtually confined, to those relating to forum. Mr Harrison based this upon what the Supreme Court said in In re L (A Child)(Custody: Habitual Residence)(Reunite International Child Abd uction Centre intervening) [2013] UKSC 75 (Re L: Texas) in a passage beginning at [28] but with the focus particularly on [32].

Before I enlarge upon Mr Harrison’s argument, it may be convenient to set out something about Re M: Zimbabwe because of its central relevance to the proper approach to the discretion stage in Hague Convention cases.

Re M: Zimbabwe marked a watershed for Hague proceedings, providing the opportunity for the House of Lords to clear up certain of the uncertainties and misconceptions that had grown up.

There, the trial judge had approached the case from the standpoint that return could only be refused in the court’s discretion if the case was exceptional. The House of Lords did not agree. It made clear that the exercise of discretion under the Hague Convention involves no test of exceptionality. As Baroness Hale observed:

“[40]…. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the Convention.”

The courts in earlier cases had been uncertain as to whether the discretion might be confined to a consideration of only two factors, namely the child’s objections and Hague policy. In Re M: Zimbabwe, the House of Lords held that it was at large. Given the radical nature of Mr Harrison’s argument, I will quote fully from what Baroness Hale said:

“[43] My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para 32 above (Footnote: ¹), save for the word "overriding" if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.

[44] That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.

[45] By way of illustration only, as this House pointed out in Re D (Abduction: Rights of Custody) [2006] UKHL 51; [2007] 1 AC 619, para 55, "it is inconceivable that a court which reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate." It was not the policy of the Convention that children should be put at serious risk of harm or placed in intolerable situations. In consent or acquiescence cases, on the other hand, general considerations of comity and confidence, particular considerations relating to the speed of legal proceedings and approach to relocation in the home country, and individual considerations relating to the particular child might point to a speedy return so that her future can be decided in her home country.

[46] In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.

[47] In settlement cases, it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer "hot pursuit" cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child's objections as well as her integration in her new community.

[48] All this is merely to illustrate that the policy of the Convention does not yield identical results in all cases, and has to be weighed together with the circumstances which produced the exception and such pointers as there are towards the welfare of the particular child. The Convention itself contains a simple, sensible and carefully thought out balance between various considerations, all aimed at serving the interests of children by deterring and where appropriate remedying international child abduction. Further elaboration with additional tests and checklists is not required.”

I return to Re L: Texas and Mr Harrison’s submissions based upon it.

The facts of Re L: Texas are quite complex and the fine detail does not matter for present purposes. The child had been brought to England from Texas by his mother on the basis of an order made in August 2011 by the United States District Court under the 1980 Hague Convention for his return here. That order was subsequently overturned, a year later, by the United States Federal District Court which ordered the child’s return to the United States. When the mother did not return him, the father applied to the English courts for his return under the Hague Convention or under the inherent jurisdiction. That was refused by the trial judge, whose decision was upheld by the Court of Appeal. The Supreme Court, however, ordered the child to be returned to Texas. It held that the child had become habitually resident in England by August 2012 but ordered the return under the inherent jurisdiction. It is material to note that the Texan courts had been involved with the family since 2008. The father was proposing (as we can see from [40] of the Supreme Court’s judgment) that the child should return to Texas with his mother so that the Texan court could consider any application which the mother may make for the modification of the existing Texan custody order in favour of the father. His evidence was that such an application could be decided within 3 months and he offered undertakings which would have enabled the parents to live separately in Texas, sharing the care of the child between them.

The Supreme Court held that the judge at first instance had asked himself the wrong question, an error not corrected by the Court of Appeal. They formulated the right question and answered it themselves.

The judge had asked himself:

“whether I can on the information presently available to this court reasonably conclude that to leave his mother and London for his father and San Antonio would, at this point, be in his best interests.”

In the passage upon which Mr Harrison relies, Baroness Hale (with whom all members of the court agreed) said:

“[32] ….it is open to this court to ask itself the correct question: is it in K’s best interests to remain in this country so that the dispute between his parents is decided here or to return to Texas so that the dispute can be decided there?”

That, says Mr Harrison, is the question that the court exercising its discretion under the 1980 Hague Convention has to ask itself too. On his case, the focus may thus be narrowed almost to the point of becoming a question of which is the right forum for the necessary welfare proceedings. That this is the thrust of his submission is underlined by the fact that the cases upon which he relies both concern aspects of jurisdiction. He cites Re I (A Child)(Contact Application: Jurisdiction)(Centre for Family Law and Practice and Another Intervening) [2009] UKSC 10 [2010] 1 AC 3192 and Re M (Brussels II Revised: Art 15) [2014] EWCA Civ 152. The former case concerned the jurisdiction provisions in article 12 of Brussels II Revised. The latter concerned the provisions of article 15 of Brussels II Revised which regulate the transfer of jurisdiction to a court better placed to hear the case.

I cannot agree that an approach which risks narrowing the focus to this extent would be correct. I will attempt to set out the reasons why I say this.

[32] is to be read in context

For a start, [32] of Re L: Texas must be read in context. It forms part of the passage, beginning at [28], where Baroness Hale was dealing with the High Court’s inherent jurisdiction to return a child to his or her home country. At [28], she referred to the well established principles applicable to such cases, saying that when the court is exercising its inherent jurisdiction in such cases:

“[28]….The welfare of the child is the court's paramount consideration: Children Act 1989, s 1(1). But this does not mean that the court is obliged in every case to conduct a full-blown welfare-based inquiry into where the child should live. Long before the Hague Convention was adopted, the inherent jurisdiction was used to secure the prompt return of a child who had been wrongfully removed from his home country: see In re J (A Child)(Custody Rights: Jurisdiction) [2006] 1 AC 80, paras 26 - 27, and the cases cited therein. Furthermore, it has long been established that, in the interests of international comity, the existence of an order made by a foreign court of competent jurisdiction is a relevant factor….”

That passage gives no hint that Baroness Hale considered that, notwithstanding that the welfare of the child was the court’s paramount consideration in inherent jurisdiction return cases, a court must restrict the ambit of the factors which might carry weight in its decision about the child. It gives no hint that she was intending anything that she said in the next few paragraphs to disrupt the settled law in In re J. In re J confirmed that it could be consistent with the welfare principle for the court to order the immediate return of a child to a foreign jurisdiction without a full investigation of the merits, and that the judge may find it convenient to start from the proposition that it was likely to be better for the child to return to his home country for any disputes about his future to be decided there. But, at the same time, it made quite clear that, in non-Hague cases, the welfare of the child was paramount, Hague Convention principles were not to be imported into the exercise, and the court had to focus on the individual child in all the particular circumstances of the case.

At [29], Baroness Hale turned to the particular case with which the court was concerned and explained why the judge had asked the wrong question on the facts of that case. It was wrong on those facts because the judge asked whether it was in the child’s interests to leave his mother and London for his father and Texas when that was not what the father was proposing. He was proposing simply that the child return to Texas with his mother so that the Texan court (which had, of course, already had considerable involvement) could decide on future arrangements for him.

Against that backdrop, I would see [32] as no more than the Supreme Court’s recasting of what was the pertinent question for that particular case, with the right facts inserted into it. Had it been intended to go further and to change the approach laid out in In re J, I would have expected an explicit announcement to that effect.

Re L: Texas is not intended to alter the position as established in Re M: Zimbabwe

It is even more difficult to contemplate that the Supreme Court was intending to alter the law established in Re M: Zimbabwe, or even simply to interpret it in a way which differed from the way in which it had been understood hitherto, without saying so expressly. By the time she got to [32], Baroness Hale was not concerned with Hague Convention principles at all. What is more, Re M: Zimbabwe, although cited in argument, was not even mentioned in the judgment. Nothing in Re L: Texas provides any reason to treat it as anything other than good law.

Inconsistent with Re M: Zimbabwe

Is Mr Harrison’s proposed approach consistent with Re M: Zimbabwe? I do not think so. Or, at the very least, I think it risks confusing the issue of what is potentially relevant at the discretion stage. Re M: Zimbabwe says in terms that the discretion that arises is “at large”. The factors to which the court must have regard include “the wider considerations of the child’s rights and welfare”. The Hague policy must be put into the balance but there is no limitation on the other factors that can be considered and the weighting of individual features is not prescribed.

I would also observe that, contrary to Mr Harrison’s submission, it seems that there is no ban or limit on considering, as part of the discretionary exercise, what the legal position would be, practically and substantively, in the two countries, just because they are Hague Convention countries. At [39] of Re M: Zimbabwe, in the course of discussing Re J and the varying weight to be given in such cases to the potential advantages of returning to the home country for disputes to be settled there, Baroness Hale said:

“But the weight to be given to that factor and to all the varying factors, some of which are canvassed in Re J, will vary enormously from case to case. No doubt, for example, in cases involving Hague Convention countries the differences in the legal systems and principles of law of the two countries will be much less significant than they might be in cases which fall outside the Convention altogether.” (my italics)

It is noteworthy that what Baroness Hale did not say, in giving the example that she did, was that differences in legal systems were irrelevant in cases involving Hague Convention countries; she said merely that they would be of much less significance.

Double weighting of Hague considerations

A further reason for my disinclination to adopt Mr Harrison’s approach is that it seems to me that it could result in Hague Convention considerations being given double weight. They already import into the discretionary exercise the consideration that it is generally in the best interests of abducted children to be swiftly returned to their country of habitual residence, as well as considerations of comity and respect for the judicial processes of another state (see [42] of Re M). Directing the focus of the welfare enquiry towards the question of forum in the way that Mr Harrison suggests seems to me to be training two spotlights on the same thing, with the risk that other welfare considerations which should be considered, albeit in the summary way which has to be adopted in Hague cases, will be lost in the shadows. This would come close to restoring the erroneous approach seen in some pre-Re M: Zimbabwe cases where the only relevant factors in the discretionary exercise were thought to be the matters which opened the gateway to the discretion and Hague Convention policy, albeit now with the addition of forum considerations as well.

Runs counter to Hague policy

What is more, it seems to me that the proposed approach may actually run counter to Hague policy. How, it may be asked, can it risk giving double weight to Hague considerations and also run counter to Hague policy? So far, the concentration has been on that aspect of the Convention policy which is concerned with the benefits to children of a speedy return. But the Convention has to be viewed as a whole. It is an instrument which is designed to protect children and to put their interests first and it recognizes that there will be cases where a prompt return will not serve the child’s interests. It is the purpose of the exceptions to cater for this. It would potentially defeat the object if, once an exception was established, the discretion stage which followed were to be confined as has been suggested, preventing the court from acting on whatever welfare considerations appear to be important in the individual child’s case. As Baroness Hale put it, in these cases “a discretion arises from the terms of the Convention itself” which “contains a simple, sensible and carefully thought out balance between various considerations, all aimed at serving the interests of children by deterring and where appropriate remedying international abduction”, see [43] and [48] of Re M: Zimbabwe.

Undesirable and inappropriate gloss

Finally, the House of Lords and now the Supreme Court have firmly discouraged putting a gloss on the simple terms of the Convention or elaborating it with additional tests and checklists. I see Mr Harrison’s proposed approach as over-engineering of this sort.

But not a full blown welfare enquiry

In case there should be any doubt about it, in rejecting Mr Harrison’s submission on this point, I am not in any way seeking to open the discretionary stage up into a detailed examination of the child’s welfare, short and long term – a full blown welfare enquiry. The process in a Hague Convention case is a summary one, designed to be concluded very quickly. The court’s decision has to be reached within the constraints that that imposes and with a beady eye on the limited purpose of the exercise and on Hague policy considerations. In short, I am seeking to be faithful to what was said in Re M: Zimbabwe about this function of the court and the way in which it is to be fulfilled.

I turn to the argument that the judge erred in the exercise of her discretion.

Although I have not accepted Mr Harrison’s invitation to impose a restriction in principle on the focus of the judge’s welfare enquiry, I must still consider his argument that, even on the Re M: Zimbabwe approach, the judge failed to take the account that she should have done of forum considerations, focusing too much on longer term welfare considerations and not enough on the fact that the return she was being asked to order was a return pending the Brazilian court determining G’s future.

It is material to note, in connection with this point and generally, that Mr Harrison is right to point out that the judge did not mention expressly that she took into account considerations of Hague Convention policy. It would have been better had she done so, but it is inconceivable that a judge who has been applying the Convention for as many years as this judge would not have been deeply conscious of the policy considerations and of the fact that the return she was asked to order was pending the Brazilian court determining welfare issues, if it was asked to do so. Although I have differed with her on her finding as to habitual residence, Hogg J’s judgment reveals a thorough grasp of the up to date law and practice of Hague Convention cases. She knew perfectly well that it was a summary return that was sought, as can be seen from the introductory words of the first paragraph of her judgment, and, for a long-serving Family Division judge, the mere mention of the Convention would be enough to bring to mind the reasons why such a summary return is normally in the interests of the child who is the subject of the proceedings and of children generally. We know she was also acutely conscious that the events in this case arose in the context of a visit here by G for the purposes of a holiday and that M’s proceedings were commenced speedily; this placed the facts very firmly within the prime target area of the Convention.

In a further submission, which drew from Mr Setright the comment that Mr Harrison was seeking to have his cake and eat it, Mr Harrison was critical of the judge for failing to look at the longer term, notably at the impact on G and J of making an order that would continue their separation, possibly for the remainder of their childhood, and could result in different courts having jurisdiction over their long term welfare. I am not sure it can really be said that Mr Harrison is contradicting himself in making this submission as well as his submission that the judge failed to confine herself appropriately to the position pending the Brazilian court determining the welfare issues. Where the discretion is at large, a mix of shorter and longer term considerations may come into the equation. But I do not accept that Mr Harrison’s criticism of the judge’s weighing of the various factors that are relevant here is made good.

The reality is that there was plenty of material to set against Hague Convention considerations in this case and the judge’s conclusion as to how she should exercise her discretion was in no way surprising. Furthermore, in contrast to the position in Re L: Texas, the Brazilian court was not yet involved and there was nothing to help the judge as to what the practicalities were likely to be in Brazil and particularly as to how long it would take to obtain a decision about G’s longer term future.

It is clear that the judge considered G’s views to be of central importance in her determination. G’s objections had opened the gateway to the discretion that the judge had to exercise and there was perhaps more than the usual amount of information about her present state of mind because Mr Power had had more opportunity to discuss matters with her than is usual in cases like this. What she said to him about her time living in Brazil may have been coloured by subsequent events, but her state of mind since the inception of the current proceedings was something that Mr Power was very well placed to assess contemporaneously.

He told the judge that G’s objections were her own genuine objections, that there was a conviction in her, not just a wish but something deep down inside her to the effect that she wants to be in England. He said she regards England as her home. He said that attention had to be paid to her wishes and feelings and that if she were to be forced to go back, there was a real risk of psychological damage to her. In addition, he said that her relationship with M would be permanently damaged. Furthermore, he thought her threats not to co-operate with a return were real.

The judge expressly accepted that G’s objections were strong and that they were not about returning to M’s care but to Brazil. As I read [42] to [46] of the judgment, she also impliedly accepted the elements of Mr Power’s assessment that she set out in those paragraphs. Furthermore, she accepted, as she was entitled to do, that G had behaved as a mature 12 year old and argued her case in a mature, rational way. Taken together, all of this amounted to a cogent case against return.

The judge set against it the physical separation that there would be from M and J. Mr Harrison suggests that it was inappropriate for her to take the view that this was mitigated by the fact that G and J would, at 10 and 12, increasingly be leading their own lives with their own friends anyway. She also took into account the availability of electronic communications as a way of the siblings keeping in touch. This was, exactly the sort of assessment that a family judge can and often does make and I do not detect any error of approach.

As for the argument that welfare disputes about J and G may be consigned to different courts if G is not returned to Brazil, which in Mr Harrison’s submission would be undesirable, that may in fact be a problem which, if it exists, is more academic than real, given that there does not seem to be any active dispute about J’s welfare.

In all the circumstances, I see no reason to interfere with the judge’s decision as to how she would have exercised her discretion were she to have found G habitually resident in Brazil, as I would find. Accordingly, it is not necessary, in my view, to remit the case for the question of discretion to be reheard. I would instead adopt the judge’s reasoning and conclusion on this aspect of the case. The order that she made refusing a return of G to Brazil would accordingly stand on her alternative basis.

Mr Harrison realistically recognises that if we uphold the judge’s conclusion that a return should not be ordered under the Hague Convention, any attempt to achieve a return under the inherent jurisdiction would be doomed. The same welfare considerations operate in relation to both applications and, if anything, M’s position would be more difficult under the inherent jurisdiction because she would not have Hague Convention policy considerations upon which to place reliance.

For the reasons I have set out, I would dismiss the appeal.

I agree.

I also agree.