Summary
The proceedings were concerned with a 7-year old girl, J. The father was Spanish; the mother was English. The parties met in 1998, and separated in 2005 when the mother and J left the matrimonial home in Spain, starting to live separately.
Mother and J came for Christmas to England; it was agreed for them to go back to Spain for the start of School term in January 2006. However, only the mother returned back to Spain, leaving the child with her grandmother to live in England.
The father did not make any application under the Hague Convention until November 2006 when the proceedings, seeking the return of the child were initiated.
The mother put forward a defence, relying on both Articles 13(a) and 13(b) of the Hague Convention.
On 31st January 2007, Macur J held that the mother’s case was not proven.
Notice of appeal was put forward before the Court of Appeal on 5th March 2007. The appeal was allowed, and the case was remitted back to the High Court for further consideration. An important aspect of the case was the child had not been heard. Lord Justice Thorpe held:
“16 [...]What enables me to characterise this case as unusual, indeed exceptional, is that at all stages after the filing of the mother's defence of 15 January, no-one, either practitioners or judges, focussed on the final paragraph of her defence. Accordingly, there was no enquiry as to J's wishes and feelings, which is the ordinary interpretation of the court's obligation to “hear the child”. It was not a case in which the child's wishes and feelings had been projected into the centre of the stage by a reliance on the child's objection to return. But a clear distinction has to be drawn between obligations that flow from a pleading of the child's objections and the court's obligation, quite apart from anything that may be pleaded, in all cases to hear the child, unless that necessity is excused by reference to the child's age and understanding.
17 The obligation of the court, as the defence rightly pleaded, arises from Article 11(2) of the
Brussels II Revised Regulation. Mr Setright QC, who did not appear below, has presented the mother's appeal with his characteristic skill and experience. He says: well, the judge is not really to be blamed because nobody directed her attention to the need to hear J, the mother never suggested it, the father never suggested it. Mr Setright reminds us that it can be something of a dangerous development in a Hague case since the child, when heard, may easily negate a defence that has been raised or developed by the abductor. So, it might be said, that this was a strategic decision on the part of each of the parties: but the court is not concerned and certainly not ruled by the litigation strategy of either of the parties. It has an obligation, imposed by Article 11.2 , to hear the child, whatever may be the consequences. So, naturally, Mr Setright submits that the judge unwittingly fell into a fundamental error and accordingly the case must be remitted to her to enable her to discharge her obligations under the regulation.” [16-17]
In this context, the following observations were made:
“20 Curiously, this court does now have a fairly extensive idea of what J would wish to say when heard. […]
22 But before I conclude, it does seem to me that there are lessons to be learned from this case. First I am surprised that the novel obligation imposed by Article 11 , and highlighted by the relatively recent decision of the House of Lords in the case of D (a child) WLR [2006], UKHL 51 (51–71) decided in October 2006, has not focussed more attention on steps that need to be taken to ensure that in every case the Article 11 obligation is not overlooked.
[…]
24 One thing that is clear to me is that the obligation to hear the child must not override the obligation in the same Article 11 to conclude the proceedings within six weeks of issue [...].” [20, 22 and 24]