PIL instrument(s)

Case number and/or case name

Kinderis v Kinderis (No 2) [2014] EWHC 693 (Fam)

Details of the court

England and Wales, First Instance

Articles referred to by the court

Date of the judgement

06 February 2014

Appeal history

CJEU's case law cited by the court

Summary

The proceedings were in respect of a child who was born in Lithuania. The child was 11-year old. The parties to the proceedings were both from Lithuania. They lived together in Lithuania till July 2013, when the mother and the child arrived in England. They arrived with the father’s consent who had been given the impression that they had been going on a holiday in England. An application for a summary return of the child to Lithuania was made by the father. The child abduction proceedings commenced in England on 18th October 2013. The father’s application was dismissed by the English High Court. HHJ Clifford Bellamy held: “55 I am satisfied that [the child] does object to being returned to Lithuania and that she is of an age and degree of maturity at which it is appropriate to take account of her views. 56 That, though, is not the end of the matter. Even where the court finds that a child objects to returning to her country of origin and that she is of an age and degree of maturity at which it is appropriate to take account of her views, the court must still determine, in the exercise of discretion, whether to order her return or to dismiss the application. 57 I have acknowledged the central importance of Art 12 . I have also referred to the guidance given by Baroness Hale in Re M that taking account of a child's views ‘does not mean that those views are always determinative or even presumptively so’. It seems to me to be implicit in the way Her Ladyship expressed herself that there will be cases in which the child's views will be determinative. In my judgment this is such a case. Whilst I have regard to the objectives of the Convention, I am also entitled to take welfare issues into account. Neither is of overriding importance. Both must be weighed in the balance. In this case I am persuaded that the balance comes down in favour of accepting B's objections as being determinative on the basis that such an outcome is also strongly consistent with her welfare. 58 I shall refuse the father's application.” [55-58]