England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985 INCORPORATING THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980
AND IN THE MATTER OF THE INHERENT JURISDICTION
AND IN THE MATTER OF BF AND RF (MINORS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 August 2010

MR. JUSTICE BAKER :

MR JUSTICE BAKER:

1. In these proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980, as implemented by the Child Abduction and Custody Act 1985 and complemented by the Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ("Brussels II Revised"), and under the inherent jurisdiction in the High Court, WF, ("the father"), represented by Mr Edward Devereux, seeks the return to Germany of two children, a daughter, B, born 22 November 1996, therefore now aged 13 years 8 months, who is represented by her own solicitor, and by Mr Marcus Scott-Manderson QC, and a son, R, born 5 July 1998, therefore now aged 12, represented by Ms Gill Honeyman of Cafcass Legal, instructed by his Guardian ad litem, Ms Toni Jolly, following their wrongful abduction to this country by their mother, Mrs RJ, ("the mother"), who is represented by Mr Teertha Gupta.
2. The mother accepts that the children were wrongfully removed from Germany, their country of habitual residence, on 22 March 2010 in breach of the father's rights of custody, but resists their return on the basis of a number of defences under the Convention. The return is also opposed by B who raises similar, although not identical, defences.

Summary and background

3. The father was born in Germany in 1970 and now works as an engineer and part-time voluntary fire fighter in Mindelheim in southern Bavaria. Other members of the paternal extended family live nearby. The mother was born in the UK in 1972. The parties married in Germany in 1994. B was born in 1996 and R in 1998. It is agreed by all parties that R suffers from ADHD and has some difficulties with verbal communication and is also taking medication to help him concentrate. For the purposes of these proceedings, R has been assessed by a psychologist, Dr Fiona Scott, who has concluded that in a number of respects he is functioning at the age of 10 to 11, some 12 to 18 months below his chronological age. It was suggested at an earlier stage in R's life that he might be on the autistic spectrum. Dr Scott observed some features associated with that condition, but noted others were absent and reached a clear conclusion that he was not autistic. R's problems, however, were sufficiently marked to cause his parents to send him to a specialist boarding private educational placement in Wilhelmsdorf in Germany.
4. The parents' marriage broke down in 2003 and they were divorced later that year. After divorce, both children remained in the principal care of the mother, but with regular staying contact with the father every fortnight on alternate weekends and for one half of the school holidays. The father makes financial provision for the children and contributes to the cost of R's education. Both parents have subsequently remarried: the father to a woman by whom he has had two further children and the mother to a man ("Mr J"), a soldier, by whom she has had another child, A, now aged four and three quarters. The mother, Mr J and the three children lived at Oberried, also in southern Bavaria.
5. According to the mother, and corroborated by both B and R, this second marriage was characterised by domestic violence perpetrated by Mr J on the mother and also on the children, in particular R and A. The mother in her affidavit in these proceedings has described a pattern of domestic violence and, in talking to her own solicitor, B has confirmed this account. As described by the mother and B, the level of violence was significant and disturbing and has manifestly, to my mind, had a profound effect on their lives. According to B, who was evidently close to and caring towards her siblings, R and A, she took steps on occasion to protect the younger children from exposure to domestic violence.
6. Shortly before Christmas 2009, the mother consulted a lawyer in Germany about a divorce. Over Christmas, in fact on Christmas Day itself, there was another serious act of domestic violence allegedly inflicted by Mr J on the mother in which (on her account, unchallenged in these proceedings) she sustained injuries to both her knees. Following this assault, the mother and the children went to register a complaint at a local police station. The mother drove to the police station with excess alcohol in her bloodstream, as a result of which she was subsequently convicted, fined and banned from driving for several months. However, the police took her allegation of domestic violence seriously, arranged accommodation for her and the children in a refuge and arrested and charged Mr J. He was then excluded from the matrimonial home for a period, but subsequently the mother allowed him to return. Although Mr J, according to B, was "fine and nice" for a short while, further domestic violence allegedly ensued. It is to my mind significant that B, in speaking to her lawyer acting in these proceedings, was extremely critical of her mother saying:

"I was really annoyed with my mum, the way she used to let Mr J back into our lives. It wasn't right. I know she had a real difficulty about leaving him. She did try, I know she did, but she was not able to. I always worried about her going back to him."

7. On 22 March 2010, the mother brought B, R and A to this country without telling either the father or Mr J. The first the father knew about it was when the maternal grandmother telephoned him later that day. The following day he rang the mother on her mobile telephone and she told him that she was not returning the children to Germany, and he indicated his objections. On the following day, the father sent a text message to the mother in German, which, translated, reads:

"If you are prepared to bring R back and see to normal contact with me for B I will drop the matter. Otherwise it starts now."

The father says that he was under enormous pressure when he sent that message. The mother did not respond and he subsequently contacted the German Central Authority. Solicitors were instructed on behalf of the father via the UK International Child Abduction Unit. Attempts to secure the voluntary return of the children failed, and these proceedings were duly started by Originating Summons on 23 April 2010.

8. Meanwhile, the mother and the children had moved to Devon. The mother started a new relationship with another man and the children started attending a comprehensive school. The father was not consulted about this choice of school. There is some evidence of the children settling down there; B in particular has made a number of friends.
9. On 29 April 2010 the application came before Sir Christopher Sumner, sitting as a deputy Judge of the Family Division, who made various directions, including joining the children as parties, a direction that an officer from the Cafcass High Court Abduction Team be invited to represent R, and a direction that both children should be represented by Miss Nina Hansen of Freemans, a firm specialising in child abduction work. At the outset of the hearing before me, Mr Devereux raised the objection that, insofar as the effect of this was that B would be instructing Miss Hansen direct, it was outwith the provisions of the Family Proceedings Rules 1991, as amended. In the event, no party sought to argue before me that this difficulty was insuperable. All parties agreed that it could be overcome by the court taking a further step, although they did not agree precisely what that step should be. In view of the shortage of court time and the need to avoid superfluous (albeit academically interesting) legal argument, I took the pragmatic step with the agreement of all parties of directing that Miss Hansen should continue to represent B as litigation friend and thereby continue to instruct Mr Scott-Manderson QC. I shall briefly return to this point later in the judgment.
10. Amongst the further directions given by Sir Christopher Sumner were provisions as to the filing of evidence and the listing of the final hearing on 21 and 22 June 2010. In the event, however, the final hearing did not proceed on that date and instead His Honour Judge Knopf, sitting under section 9 of the Senior Courts Act 1981, adjourned the hearing to 4 and 5 August 2010, gave permission for the instruction of Dr Scott to carry out an assessment of R, directed that the Central Authority should liaise with its German counterpart pursuant to Article 55 of Brussels II Revised to obtain information about the protective measures available in Germany and information concerning services available to the mother and children on their return to that country, and made an order for interim contact between the children and their father. A final directions hearing took place before the President on 27 July 2010 and the final hearing was listed before me. A few days before the final hearing, following receipt of the final Cafcass report from Ms Jolly, Miss Hansen concluded that she should not continue to act for both B and R, and accordingly Cafcass Legal were invited to step in at short notice to represent R.
11. In addition to the question of the basis upon which B directly instructed Miss Hansen, a further preliminary issue arose as to whether B should sit in during the hearing before me. Mr Scott-Manderson QC on her behalf argued in favour of this course, supported by the mother. The father, through Mr Devereux, opposed the application. In the event, I concluded that B should not attend the hearing. I did, however, agree to see B briefly to explain my decision. I have also told her that I will see her at the conclusion of the hearing to inform her of my decision on the application for summary return.

The statutory framework

12. As Mr Devereux points out, the twin objectives of the Hague Convention, as set out in Article 1, are:

"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."

What Mr Devereux describes as the "locus classicus" of the object and purpose of the Convention is to be found in the speech of Lord Browne-Wilkinson in Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 at page 81C:

"The object of the Convention is to protect children from the harmful effects of their wrongful removal from the country of their habitual residence to another country or their wrongful retention in some country other than that of their habitual residence. This is to be achieved by establishing a procedure to ensure the proper return of a child to the State of his habitual residence."

More recently, Baroness Hale in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, observed (at paragraph [48]):

"The whole object of the Hague Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country, and in accordance to the evidence which will mostly be there rather than in the country to which they have been removed."

In other words, crucial decisions about the welfare of the children concerned are to be taken in the country of their habitual residence, and courts hearing applications for summary return under the Convention must refrain from conducting any welfare enquiry until the application for summary return has been resolved.

13. Article 12 of the Convention provides:

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order return of the child forthwith.

The judicial or administrative authority even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."

14. Article 13 provides:

"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 the 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 position.

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."

15. Article 20 of the Convention provides:

"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."

When the Convention was incorporated into English law under the 1985 Act, Article 20 was not included. It must, nevertheless, now be considered relevant in cases brought under the Convention for the reason explained by Baroness Hale in Re D (A Child) (Abduction: Rights of of Custody) (supra) at paragraph [65]:

"At that stage [i.e. the date of incorporation of the Convention] there was no human rights instrument incorporated into UK domestic law. The Human Rights Act 1998 ("the 1998 Act") has now given the rights set out in the European Convention legal effect in this country. By virtue of s 6 of the 1998 Act, it is unlawful for the court, as a public authority to act in a way which is incompatible with a person's European Convention rights. In this way, the court is bound to give effect to the European Convention rights in Hague Convention cases just as in any other. Article 20 of the Hague Convention has been given domestic effect by a different route."

16. The provisions of the Hague Convention set out above, in particular Article 13, have been complemented by Article 11 of Brussels II Revised, which provides as follows:

"1 Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of … the 1980 Hague Convention... in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before wrongful removal or retention, paragraphs 2 to 8 shall apply.

2 When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

3 A court to which an application for the return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious proceedings available in national law.

Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

4 A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

5 A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.

6 If a court has issued an order for non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.

7 Unless the courts of the Member State where the child is habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court of central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with the national law, within three months of the date of notification so that the court can examine the question of custody of the child.

Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.

8 Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child."

17. The various defences under the Hague Convention have generated a considerable amount of case law in this country in the past 25 years. I shall consider the relevant parts of that case law below.

The issues

18. At my request at the outset of the hearing, counsel synthesised the relevant questions for my determination as follows. (A defence of acquiescence was pleaded in the Statement of Defence but abandoned by Mr Gupta at the outset of the hearing).

(1) Do B and/or R object to a return to Germany?

(2) If so, in each case is the child at an age and level of maturity at which it is appropriate to take account of his or her objections?

(3) Would the return of either child expose that child to a grave risk of harm or an intolerable situation under Article 13(b) of the Hague Convention, having regard to Article 11(4) of Brussels II Revised?

(4) How should a court exercise any discretion that arises from a positive answer to questions 2 and 3 above?

(5) In particular, how should the court exercise its discretion if it reaches different conclusions to questions 2 and 3 in respect of these two children?

(6) If either or both children are still to be returned following the answers to the previous questions, would that return constitute a breach of human rights under Article 6 or 8 of the European Convention so as to amount to an infringement of the fundamental principles of the UK relating to the protection of human rights within the meaning of Article 20 of the Hague Convention and, if so, how should the court exercise its discretion under that Article?

Procedural issues

19. Two preliminary issues have arisen in these proceedings concerning the application of procedural rules, one involving the representation of B and the other concerning the party status of R.
20. Under rule 9.2(1) of the Family Proceedings Rules 1991:

"Except where rule 9.2A or any other rule otherwise provides, a child or protected party may begin and prosecute any family proceedings only by his next friend and may defend any such proceedings only by his guardian ad litem and, except as otherwise provided by this rule, it shall not be necessary for the guardian ad litem to be appointed by the court."

Rule 9.5(1) provides:

"Without prejudice to rules 2.57 and 9.2A and to paragraph 2 of Appendix 4, if in any family proceedings it appears to the court that it is in the best interests of any child to be made a party to those proceedings, the court may appoint –

(a) an officer of the service or a Welsh family proceedings officer;

(b) (if he consents) the Official Solicitor; or

(c) (if he consents) some other proper person

to be the guardian ad litem of the child with authority to take part in the proceedings on the child's behalf."

Rule 9.2A provides inter alia:

"(1)Where a person entitled to begin, prosecute or defend any proceedings to which this rule applies is a child to whom this Part applies, he may, subject to paragraph (4), begin, prosecute or defend, as the case may be, such proceedings without a next friend or guardian ad litem:

(a) where he has attained the leave of the court for that purpose; or

(b) where a solicitor –

(i) considers that the child is able, having regard to his understanding, to give instructions in relation to the proceedings; and

(ii) has accepted instructions from the child to act for him in the proceedings and, where the proceedings have begun, is so acting."

The language of rule 9.2A appears to entrust the solicitor with the responsibility of deciding whether the child has the ability to give instructions. However, in Re CT (A Minor)(Wardship: Representation) [1993] 2 FLR 278, the Court of Appeal held that the ultimate decision as to whether a child can instruct a solicitor directly rests with the court.

21. Importantly, rule 9.1(3) provides:

"Rule 9.2A shall apply only to proceedings under the Act of 1989, Part 4A of the Family Law Act 1996 or inherent jurisdiction of the High Court with respect to children."

Thus, it does not apply to proceedings under the Hague Convention. Mr Devereux submits that the rationale for this omission would appear to be that (a) Hague Convention proceedings are sui generis and not welfare based proceedings and (b) to permit a child to instruct a solicitor directly will almost certainly cause delay which might otherwise cause breaches of treaty obligations in terms of ensuring the proceedings are completed with due expedition. On the other hand, in a jurisdiction where a child's wishes, feelings and objections to its summary return are a central issue within the proceedings, it might be thought anomalous that the child who is capable of giving instructions does not have the right to instruct a solicitor direct. Furthermore, in many cases, (including this one), applications are made for the summary return of children both under the Hague Convention and under the inherent jurisdiction. Under the current rules a child can instruct a solicitor directly under the latter, but not under the former.

22. In this case neither the court nor Miss Hansen of her own volition has the power to permit B to instruct Miss Hansen directly under the Hague Convention proceedings without a Guardian ad litem or litigation friend. I was told by counsel that it is not unknown for this lacuna in the rules to be overlooked in Hague proceedings, but the terms of the rule are clear. The irregularity was met in this case by taking the pragmatic approach of appointing Ms Hansen as litigation friend for B at the hearing, but of course by that stage she had already carried out a very considerable amount of work on B's behalf. Mr Devereux submits that there is an urgent need for this lacuna to be considered by the Family Proceedings Rules Committee which is undertaking a radical redrafting of the rules. In the light of the great emphasis now being given to children's objections under Article 13 as set out elsewhere in this judgment, I hope that the committee will find time to review this matter in the near future.
23. The second procedural matter concerns R's party status. In her closing submissions, Ms Honeyman drew my attention to the fact that at no stage had the question of whether R should be a party been actively considered by a judge. The order made at the first directions hearing by Sir Christopher Sumner contains a recital to the effect that the parties had been "notified that... Miss Hansen…are [sic] intending to apply for leave for the children to be separately represented" and an order that there be "leave for the children, R and B, to be joined as parties and to be represented at the final hearing unless the Plaintiff takes steps in opposition to this grant of leave by 4.00pm on 7 May 2010". By a second order made on the same day, the learned deputy judge ordered that an officer of Cafcass High Court Abduction Team be invited to represent R and that both children be represented by Miss Hansen. Ms Honeyman expressed concern that well-established practices had not been followed in this case. The President's Direction of 5 April 2004, "Representation of Children in Family Proceedings Pursuant to FPR 1991, Rule 9.5" indicates inter alia: (a) making the child a party to the proceedings is a step that will only be taken only in cases involving an issue of significant difficulty and consequently will only occur in only a minority of cases; (b) before taking the decision to make the child a party, consideration should be given to whether an alternative route might be preferable, such as asking Cafcass to carry out further work; (c) the decision to make a child a party will always be exclusively that of a judge; (d) when deciding whether to direct that a child should be made a party, the court will take into account the risk of delay or other facts adverse to the child's welfare; and (e) the court's primary consideration will be the best interests of the child.
24. Ms Honeyman expressed particular concern that, at a time of restricted resources, it was important to give careful consideration to whether a child should be given party status. In addition, she pointed out that there was a well-established procedure that a child who is thought to have objections within the meaning of Article 13 is seen first by the Cafcass officer before a decision is taken to join as a party. Ms Honeyman submitted that in this case the decision to join R (and B) was taken before either was seen by Cafcass. Furthermore, she pointed out that R had indicated in his dealings with the Cafcass officer that he did not want to be involved in the court process.
25. I recognise the strength of these points, but hesitate before endorsing them forcefully because time has not allowed for full argument on the issue. Manifestly, in view of recent developments in the law, it is now even more important that the voice of the child is heard in proceedings under the Convention. By virtue of Article 11(2) of Brussels II Revised, there is a presumption (in EU cases) that a child should be given an opportunity to be heard unless it appears inappropriate to the court having regard to the child's age or maturity. Without wishing to lay down any rigid rules, it seems to me clearly preferable, where the time and resources permit, for the child to be seen by the Cafcass High Court Team before any decision is taken as to party status.

Child's objections gateway - case law

26. The importance of a child's objections as an issue in applications for summary return has grown during the years in which the Hague Convention has been in force for the reasons recently identified by Wilson LJ in Re W (Abduction: Child's Objections) [2010] EWCA Civ 520, [2010] 2 FLR 1165 at paragraph [17]:

"…[O]ver the last thirty years the need to take decisions about much younger children not necessarily in accordance with their wishes but at any rate in the light of their wishes has taken hold: see Article 12 of the UN Convention on the Rights of the Child and note, for EU states, the subtle shift of emphasis given to Article 13 of the Hague Convention by Article 11(2)…of Brussels II Revised. Fortunately Article 13 was drawn in terms sufficiently flexible to accommodate this development in international thinking; and although her comment was obiter, I am clear that, in the context, the observation of Baroness Hale of Richmond in Re D (Abduction: Rights of Custody) [supra] at para 59 that 'children should be heard far more frequently in Hague Convention cases than has been the practice hitherto' related to the defence of a child's objections"

With that exposition of principle in mind, I turn to consider the case law on the child's objections defence.

27. As Mr Devereux says in his skeleton argument, it is well accepted that consideration of the child's objections exception to the obligation to return under Article 12 involves considering three broad areas:

(a) Does the particular child object to being returned? If so,

(b) Has the particular child attained an age and degree of maturity at which it is appropriate to take account of his views? If so

(c) How should the court exercise its discretion?

(See Re M (Abduction: Child's Objections) [2007] EWCA Civ 260, [2007] 2 FLR 72 at paragraph [60] at 87).

Mr Devereux then proceeds in the ensuing paragraphs of his skeleton argument to remind me of a series of propositions derived from the case law on children's objections, all of which I have in mind and of which it is particularly important to highlight the following. The child's objections exception is entirely separate from Article 13(b). The question of whether a child objects to being returned and, if so, whether he or she has attained an age and degree of maturity at which it is appropriate to take account of his or her views are questions of fact which are peculiarly within the province of the trial judge. The return to which the child objects is that which would otherwise be ordered under Article 12 of the Convention: that is to say an immediate return to the country from which the child was removed or retained. There is no particular age that a child is to be considered as having attained sufficient maturity for his or her views to be taken into account. It is permissible for the court to focus specifically as to whether the child has reached a stage of development at which, when asked the question, "Do you object to a return to your home country", he or she can be relied upon to give a reliable answer, which does not depend on instinct alone, but is influenced rather by the discernment a mature child brings to the question's implications for his or her best interests in the long term and the short term. All these are well-established propositions which have been reiterated in a number of authorities, for example, Re S (A Minor) (Abduction: Custody Rights) [1993] Fam 242 sub nom S v S (Child Abduction)(Child's Views) [1992] 2 FLR 492 and Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192.

28. Mr Devereux then identifies what he calls "the first problem" concerning the defence of children's objections, namely what he describes as an "inconsistency of approach" by differently constituted panels of the Court of Appeal in Re T (Abduction: Child Objections to Return) (supra) and Re W (Abduction: Child's Objections) (supra). Specifically, he submits that there is an inconsistency as to the meaning of the words "to take account" in Article 13. In Re T, Ward LJ (at 204B) stated that the question whether it is appropriate to take account of the child's views:

"requires an ascertainment of the strength and validity of those views which will call for an examination of the following matters, among others.

(a) What is the child's own perspective of what is in her interests, short, medium and long-term? Self perception is important because it is her views that have to be judged appropriate.

(b) To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear to the child to be so grounded?

(c) To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent?

(d) To what extent will the objections be mollified on return and where it is the case, on the removal from any pernicious influence from the abducting parent?"

29. In Re W, however, Wilson LJ made this observation (at paragraph [22]):

"Earlier confusion in our jurisprudence about the meaning of the phrase 'to take account' in Article 13 (exemplified, for example, in Re T…) has in my view now been eliminated. The phrase means no more than what it says so, albeit bounded by considerations of age and degree of maturity, it represents a fairly low threshold requirement. In particular, it does not follow that the court should 'take account' of a child's objections only if they are so solidly based that they are likely to be determinative of the discretionary exercise which is to follow."

Wilson LJ's analysis is drawn from dicta of Baroness Hale in Re D (A Child) (Abduction: Rights of Custody) (supra) at paragraph [57]. As Mr Devereux fairly points out, in the subsequent case of Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 FLR 251, Baroness Hale brought into consideration at the discretion stage a number of the factors which Ward LJ in Re T had considered when determining whether or not it was appropriate to take account of the child's objections.

30. With respect to Mr Devereux, it seems to me that this is not really a problem at all. The combined effect of the House of Lords decision in Re M (Abduction: Zimbabwe) and the Court of Appeal decision in Re W is that it is now recognised that the gateway or threshold for taking account of a child's objections is "fairly low" and the factors identified by Ward LJ in Re T are, as Baroness Hale indicates, properly dealt with at the discretion stage.

Article 13b gateway - case law

31. As Ward LJ observed in Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145, when considering the Article 13(b) defence there is

"an established line of authority that the court should require clear and compelling evidence of a grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence."

The word "intolerable" means "a situation which this particular child in these particular circumstances should not be expected to tolerate" (per Baroness Hale in Re D (A Child)(Abduction: Rights of Custody) (supra) at paragraph 52). All counsel remind me of the practice well established in this jurisdiction by which undertakings can be provided by a plaintiff seeking a return of the child to alleviate the problems that may arise on the return and thus reduce the possible scope for an Article 13(b) exception. Mr Devereux, however, counsels caution, warning that it is important that the courts do not allow the policy of the Convention to become diluted by the overloading of return orders with such undertakings.

32. I am also reminded by counsel that the provisions of Brussels II Revised have consolidated the high threshold which must be passed in order for an Article 13(b) defence to be established. Article 11(4) of the Brussels II Revised provides, as stated above:

"A court cannot refuse to return a child on the basis of Article 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return."

In this context Mr Gupta on behalf of the mother reminds me of the Brussels II Revised Practice Guide, Part VII headed "The Rules on Child Abduction" and in particular the passage at paragraph 2.2:

"The court must examine this on the basis of the facts of the case. It is not sufficient that procedures exist in the Member State of origin for the protection of the child, but it must be established that the authorities in the Member State of origin have taken concrete measures to protect the child in question.

It will generally be difficult for the judge to assess the factual circumstances in the Member State of origin. The assistance of the central authorities of the Member State of origin will be vital to assess whether or not protective measures have been taken in that country and whether they adequately secure the protection of the child upon his or her return."

To that end courts are encouraged to use active judicial collaboration, for example via the European Judicial Network.

33. In addition, Ms Honeyman draws my attention to several cases which have considered whether splitting a sibling group can give rise to an Article 13(b) defence: see Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145; Re C (Abduction: Grave Risk of Physical and Psychological Harm) [1999] 2 FLR 478; Re T (Abduction: Child's Objection to Return) (supra) and Re H (Abduction) [2009] EWHC 1735 (Fam), [2009] 2 FLR 1513.

Discretion - case law

34. Turning to the law on the exercise of the discretion arising, the leading case from which all analysis must now flow is Re M (Abduction: Zimbabwe) (supra). Until that decision, it had been understood on the basis of earlier decisions of the Court of Appeal, for example, S v S (Child Abduction: Child's Views) [1992] 2 FLR 492; Zaffino v Zaffino (Abduction: Children's Views) [2005] EWCA Civ 1092, [2006] 1 FLR 410 and Vigreux v Michel [2006] EWCA Civ 630, [2006] 2 FLR 1180 that, when exercising the discretion, the court had to find something "exceptional" over and above the grounds of opposition under the Convention before it could refuse to order the return of the child. The justification for this approach was explained by Thorpe LJ in Cannon v Cannon [2004] EWCA Civ 1330, [2005] 1 FLR 169 at paragraph [38]:

"[T]he exercise of a discretion under the Hague Convention requires the court to have due regard to the overriding objectives of the Convention whilst acknowledging the importance of the child's welfare (particularly in a case where the court has found settlement), whereas the consideration of the welfare of the child is paramount if the discretion is exercised in the context of our domestic law."

35. This gloss was emphatically rejected by the House of Lords in Re M (Abduction: Zimbabwe), Baroness Hale observing, at paragraph [40]:

"…I have no doubt at all that it is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. 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."

36. Baroness Hale then proceeded to outline the approach to the exercise of the discretion when considering the various defences that arise under the Convention. This passage is particularly illuminating and it is appropriate to quote it in full from paragraphs [43] - [48] of the judgment:

"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 consideration of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted at paragraph [32] above, 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 where 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 weight 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, [2007] 1 FLR 961, 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 own country.

"46. In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception is brought into play when only two conditions are met: first, that the child herself objects to being returned and, secondly, 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 Art 12 of the United Nations Convention on the Rights of the Child 1989 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 produce of the 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 he 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 test and checklists is not required."

37. This lucid analysis provides sufficient guidance for the exercise of discretion in most cases. But for Mr Devereux it leads to what he calls "the second problem" which can be summarised thus: in a case involving a number of siblings does the court (a) establish whether or not the gateway to discretion is open in the case of each child before going on to consider the exercise of discretion; or (b) consider the position of the sibling group together and exercise a discretion "in the round"? Mr Devereux submits that "radically different approaches" have been adopted in various cases. He submits that the principal authority for option (a), on which he relies, is the Zaffino case, (supra), in particular the observations of Wall LJ (as he then was) at paragraph [34], which Mr Devereux argues remains good authority on this point, notwithstanding the fact that its approach to the exercise of discretion was based on the test of exceptionality subsequently rejected by the House of Lords in Re M (Abduction: Zimbabwe). Mr Scott-Manderson QC, on behalf of B, submits that the principal authority in support of option (b), on which he relies, is Re T (Abduction: Child's Objections to Return) (supra), which, he argues, remains good authority on this point, notwithstanding the subsequent criticism of that decision in Re W as set out above.
38. In Re T, the Court of Appeal allowed an appeal against a decision that two children, aged 11 and 6, should be returned to Spain. In the leading judgment, Ward LJ concluded that: (1) the older child had a clear and reasonable objection to return which had to be taken into account (page 211); (2) in the exercise of its discretion those objections outweighed "the spirit and purpose of the Convention", so that looked at in isolation it would not be right to order the return (page 213A - D); (3) however, were the court to order the return of the younger child, that would be a factor to bring into the balance in exercising its discretion whether or not to order the older child's return notwithstanding her objections (page 217 F - G); (4) there was a grave risk that returning the younger child without his older sister would place him in an intolerable situation and as a result the Article 13(b) defence was established in his case (page 219 A - C); (5) the exercise of discretion must be taken in the round and in the circumstances of that case the older child's objections should not be overridden to remove the intolerability of the younger child to face returning alone (page 219 D - E).
39. In Zaffino, a mother wrongfully removed four children to the UK from Canada. At first instance Munby J, (as he then was), ordered the return of the youngest two children but refused to order the return of the older two, aged 13 and 9, on the grounds of their objections. The Court of Appeal allowed an appeal against the refusal to return the older two. I have already alluded to the fact that the "exceptionality" test features strongly in the analysis of all three judges in the Court of Appeal. At paragraph [34], Wall LJ said:

"Whilst the judge plainly and correctly had to and did consider each child separately in deciding whether or not that child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of his or her views, the exercise of discretion cannot, in my judgment, properly be made by treating each child in isolation. The child's place within the family, and the consequences of the exercise of discretion on that child, must be considered."

Pausing there, it seems to me that in this respect Wall LJ's approach could be summarised in the words of Ward LJ in Re T as "exercising discretion in the round." However, Wall LJ went on to say:

"What the judge should have done first of all was to consider whether or not the gateway to discretion was open in relation to each child. Only if it was could he, in my judgment, then go on to exercise his discretion appropriately."

It is these two sentences which, in Mr. Devereux's view, give rise to what he calls "the second problem".

40. However, it does seem to me that essentially the approach of the Court of Appeal is the same in both cases. Ward LJ states that "the exercise of discretion must be taken in the round". Wall LJ expresses that "the exercise of discretion cannot … properly be made by treating each child in isolation. The child's place within the family, and the consequences of the exercise of discretion on that child, must be considered." The fact that the courts then proceeded to take a different approach in the exercise of discretion is, in my view, attributable to the difference in the facts and circumstances in respect of cases which are clearly distinguishable. Unlike Re T, it was not contended in Zaffino that the return of the second child would have put him in an intolerable situation because, in that case, the child was returning to four of his siblings and his mother. On the contrary, in Zaffino it would have been the older child who would have been in a difficult position if her brother had been returned with her because she would then have been separated from all of her five siblings.
41. To my mind this demonstrates the importance of avoiding too rigid an approach. Each case must turn on its own facts and the approach to be taken in the exercise of discretion, if it arises, will depend on all the circumstances. For my part, I conclude that Ward LJ's dictum that "the exercise of the discretion must be taken in the round" succinctly summarises the approach to be adopted and that is the course I shall endeavour to follow in this case.

Further points on discretion

42. Counsel raised three further issues concerning exercise of discretion under the Convention. First, is Article 11(4) of Brussels II Revised relevant to the exercise of discretion under the Hague Convention under the defence of child objections? Secondly, do the provisions of Article 11(6) - (8) of Brussels II Revised have any relevance to the exercise of the discretion whether to return a child under the Hague Convention? Thirdly, what is the impact of the recent decision of the European Court of Human Rights in Neulinger and Shuruk v Switzerland (Application no. 41615/07, BAILII: [2010] ECHR 1053) on the exercise of discretion under the Hague Convention?

Article 11(4) of Brussels II Revised

43. The obvious consequence of Article 11(4) of Brussels II Revised, is to narrow the scope for a successful deployment of the defence under Article 13(b) of the Hague Convention. Mr Devereux submits that its impact goes further. He contends that it is also relevant to the exercise of discretion under the child's objection defence because the policy of Brussels II Revised is to buttress the policy of the Convention. If adequate arrangements are in place to secure the protection of the child from a grave risk of harm or other intolerability, that must, submits Mr Devereux, be a relevant consideration when exercising the discretion on the defence of child's objections. Mr Scott-Manderson QC submits that this is a misreading of the Regulation. He points out that Baroness Hale in Re M (Abduction: Zimbabwe) identifies very different approaches to the exercise of discretion under, on the one hand, Article 13(b) and, on the other hand, the child's objections defence. Baroness Hale held that, where a court has concluded the Article 13(b) gateway is crossed, it would be inconceivable that the court would nevertheless order the child to return to "face his fate" whether for policy reasons or any other grounds. On one view there is barely discretion at all. Either the situation is intolerable (a high test) or is not. The impact of Article 11(4) is to focus attention on designing arrangements to make tolerable what would otherwise be intolerable.
44. I prefer Mr Scott-Manderson QC's analysis to that of Mr Devereux on this issue. As Thorpe LJ observed in Vigreux v Michel (supra) at paragraph [37], Brussels II Revised is not taken to have achieved implicitly more than it has expressed.

Article 11(6) - (8) of Brussels II Revised

45. On behalf of the mother, Mr Gupta submits that the carefully-crafted provisions of Articles 11(6) - (8) of Brussels II Revised have an impact on every exercise of discretion whether to refuse to return a child under the Hague Convention. Under Article 10 of the Regulation, in cases of wrongful removal or retention of a child, the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention retain jurisdiction (until certain conditions are satisfied) to determine matters relating to the exercise of parental responsibility, that is to say welfare decisions. Article 11(6) - (8) lays down a procedure to be followed in the event that the courts of a Member State to which the child was abducted refuse to order his return. The effect of these provisions is that, whatever decision is made about summary return, the ultimate welfare decision will be taken by the courts of habitual residence, in this case Germany. Thus, submits Mr Gupta, the court or state to which the child is abducted (the "requested state") can exercise its discretion to refuse to return the child safe in the knowledge that a welfare based enquiry will be undertaken promptly in the Member State of origin with the full cooperation and assistance of the courts in the requested state. He therefore argues that the effect of 11(6) - (8) of Brussels II Revised is to widen the discretion not to return a child under the Hague Convention.
46. Mr Devereux advances a contrary argument. He submits that the fact that the Member State of origin retains the welfare jurisdiction means that the issue in European Hague cases can no longer be characterised as an exercise designed to identify the appropriate forum for determining welfare issues. Mr Devereux submits that in most cases it would be impractical for a decision to be taken about the welfare of children while they are staying in another country. Thus, he submits, the effect of Articles 11(6) - (8) of Brussels II Revised is to narrow the scope for a discretionary refusal to return under the Hague Convention.
47. Mr Scott-Manderson QC adopts a middle way between these two propositions. Directing my attention again to Thorpe LJ's observations in the Vigreux case at paragraphs [36] – [37] (which on this point is not, he submits, undermined by the subsequent decision in Re M (Abduction Zimbabwe)), he submits the courts can take Article 11(6) - (8) into account in exercising its discretion under the Hague Convention, but should be careful not to attach too much weight to this factor. Once again, I prefer Mr Scott-Manderson QC's arguments. It seems to me that those provisions in Brussels II Revised are primarily designed to make practical arrangements to meet the situation where the Member State of origin retains welfare jurisdiction but the "requested state" has exercised its discretion under Article 12 or 13 of the Hague Convention to refuse to order the return of a child. The fact that such arrangements have been made by detailed provisions in Brussels II Revised does not in my judgment affect the exercise of discretion. Indeed, as Thorpe LJ pointed out in the Vigreux case (at paragraph [36]) the detailed procedure set out at Article 11(6) - (8) may take rather longer to bring about a determination of welfare issues than would be achieved by a swift return under the Hague Convention.

The Neulinger decision

48. In Neulinger and Shuruk v Switzerland (Application no.41615/07, BAILII: [2010] ECHR 1053), so far unreported, decided on 6 July 2010, the European Court of Human Rights sitting as a Grand Chamber held that the decision of the Swiss government to order a child to be returned to Israel under the Hague Convention was a violation of Articles 8 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is too early to assess with confidence the precise impact of this decision. The limited academic comments so far available suggest a divergence of views. Before me, Mr Scott-Manderson QC submitted that the Hague Convention and Brussels II Revised are part of a scheme of European law which is encompassed within the framework of the ECHR. The provisions of both the Hague Convention and Brussels II Revised therefore have to be implemented within that framework. In particular, Article 13(b) has to be interpreted within those confines and, when it is not so interpreted, as in the Neulinger case, the courts of the "requested state" will be in violation of Article 8 of the ECHR. This is summarised succinctly in paragraph 141 of the European Court's decision in Neulinger:

"It is not the Court's task to take the place of the competent authorities in examining whether there would be a grave risk that the child would be exposed to psychological harm, within the meaning of Article 13 of the Hague Convention, if he returned to Israel. However, the Court is competent to ascertain whether the domestic courts, in applying and interpreting the provisions of that Convention, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child's best interests."

Mr Scott-Manderson QC points out that the over-riding importance of human rights is recognised within the Hague Convention itself by Article 20. As Baroness Hale acknowledges in Re D, now that ECHR is part of our law, the Hague Convention must be interpreted in a way that complies with the fundamental principles of ECHR as if the UK had incorporated Article 20 of the Hague Convention at the time the 1985 Act was passed.

49. Clearly there will in due course be a case in which the court has to grapple with Mr Gupta's submission that Article 20 provides a further defence to an application for summary return; that the combined effect of Article 20 and the Neulinger decision has "a knock-on effect on the court's approach to the historically high and virtually unobtainable threshold cases where Article 13(b) has been found" (as Mr Gupta put it); and Mr Gupta's interesting proposition that, where an EU Member State of origin retains the welfare jurisdiction, the existence of the provisions in Article 11(6) - (8) means that a summary return is not "necessary" within the meaning of Article 8 of the ECHR. That will, however, only arise in cases where the other defences raised under the Hague Convention fail and, as will become apparent, this is not such a case. I will, therefore, refrain from further comment on the Neulinger decision, save for two brief observations. First, I endorse the observation of McFarlane J in an unreported decision, N v N, (decided on 25 September 2007), that it is essential for the groundwork for such a submission to be laid in the evidence. Secondly, my preliminary view is that it will be an extremely rare case where a court concludes that: (a) a child has been wrongfully removed in breach of a parents' rights of custody; (b) none of the defences in Articles 12 or 13 is established; but (c) nevertheless an order for the summary return of the child would infringe Article 8 of ECHR.
50. I now turn to consider the defences to the application for summary return raised by the mother and B, starting with the question of whether each child objects to being returned and has attained a degree of maturity at which it is appropriate to take account of his or her views.

B's views

51. B's views about the prospects of a summary return are set out in the two affirmations and oral evidence of Miss Hansen. In her first affirmation dated 21 June, Mrs Hansen recorded that B "appears to be a normal thirteen and a half year old, and quite clearly understood the reason for these proceedings. She was keen to talk about her position." Miss Hansen was clear as to her wishes. "B said she wanted to stay in England and to stay with her mother. She wanted holidays with her father, but she did not want to live with him and she did not want to return to Germany. I asked why this was and she told me that she really enjoyed her new school. She said it was 'cool'. She wants to be an air stewardess when she grows up and therefore the language skills she will get by continuing her education in English would greatly assist her." B proceeded to give Miss Hansen a detailed account of the alleged incidents of domestic violence perpetrated by Mr J on the mother, R and A. Miss Hansen concluded her first affirmation in these terms:

"B said she would refuse to go back to Germany if the court ordered her to go. She did not want to return to Germany which held bad memories…nor did she want to leave her Mum and A. She would simply refuse to live with her father who could not even send her clothes over to her. She was worried if her mother went back to Germany they would end up again in the same predicament with Mr J and she worried for A's and R's safety."

52. In her second affirmation dated 28 July 2010, Mrs Hansen recalled an account of a further conversation that she had with B on 14 July 2010. Prior to this meeting, B had had some contact with her father for the first time in several months. According to Miss Hansen, "B told me her views had not changed at all since she had last been to see me. She said 'I still want to stay here.' I asked why and she said, 'this is my home, this is where things are good, this is where I am settled.' I suggested that it was quick to feel settled and she said 'yes, but I have my aunts here and my grandmother and we used to come here all the time.' The children came almost every year with their mum to stay with their aunt or grandmother. Their relatives also came to Germany to visit. 'To me it felt like I was coming home. It may have something to do with that my mum is from here and she is very comfortable here and of course that gives us all the feeling of being happy.' B said 'I do not want to go back to Germany and I will not be going back. I refuse.' I asked B how she would feel if her brother was sent back, would she then go back? She replied, 'I will not let my brother going back; I will not let him go.' She said 'if my mother went back and A went back and R went back, I would feel as if I was forced to go back I suppose. I would then have to go; but I would be really angry with my dad. I'm not sure how I could continue a relationship with him.'" Speaking of her life in England, B said to Miss Hansen: "there is none of the disruption my life in Germany had ...Germany for me is just an aggression; it's between my parents, between my mother and Mr J, and all the time we are in the middle. I really find it difficult .... I was really annoyed with my mum the way she used to let Mr J back into our lives. It wasn't right. However, I know that she has a real difficulty about leaving him. She did try I know she did, but she was not able to. I always worried about her going back to him. Here we feel safe and happy." Later, Miss Hansen records B adding: "I wouldn't go back to Germany if I had to live with my dad. There were lots of different reasons, but he wouldn't have the space for me either in his house or indeed in his family." B added: "I want to continue with the life in [Devon]. Here I don't need to worry about R and A as I know they are safe and happy. I only wish that I could settle things with my dad so that he would be happy for us and support us (that is me R and A), rather than this." Miss Hansen concluded her second affirmation by saying: "in the last couple of months B seemed to have become a much more confident and happy person ... What had not changed was B's attitude towards a return to Germany. If anything, her objections have strengthened as time has gone on."
53. In her oral evidence, Miss Hansen confirmed that B had attended court on the morning of the hearing, had spoken to Miss Hansen and remained opposed to returning to Germany. Miss Hansen described her opposition as being to a return to Germany itself, but acknowledged that for B it was linked to the circumstances in which she left and the uncertainty about what would happen if she returned. Miss Hansen was closely questioned by Mr Devereux about the extent of the documentation that B had seen for the purposes of giving direct instructions to her solicitor. She replied that B had seen the affirmations she had prepared on her behalf. She had not shown her any other document, unless B had asked to see it. In response to my enquiry about her own experience in representing children, Miss Hansen stated that she had been a member of the children's panel for 18 years, and throughout that time she had represented children in public law proceedings. For the last five or six years she has also represented them in Hague Convention proceedings. Over those 18 years, she has represented over 200 children of whom probably 20 were Hague proceedings. Over 50 per cent of her work is representing children. She thought she had acquired experience in gauging whether she should or should not show documents to those children she represents.
54. Miss Hansen confirmed that B did feel that her mother had failed to protect her and the younger children, and had been unable to get away from Mr J. She felt protective towards her younger siblings and was worried about what would happen to them. She had found it distressing when she was unable to protect them. To Mr Devereux, Miss Hansen added it was a very large part of B's thinking that her mother has not been able to protect herself or her children from Mr J in Germany and that putting distance between them would be the best way of getting protection. Miss Hansen said B was concerned that if they return to Germany Mr J might come into contact with the family again because of his wish to have contact with A and for that reason "he wouldn't disappear". B described how Mr J only complies with "orders he agrees with".
55. Miss Hansen said in chief: "I do see it as 'objections' in Hague Convention terms. It could not be clearer. Her reasons for not going back are clear and cogent. It is exactly what an adult would say." Miss Hansen also described B as "not happy" about the prospect of being separated from R. Cross-examined on this point by Mr Devereux, she added that B's reasons for not wanting to return were "thought-out factors". She did not think that B was exaggerating to "beef up her case". Mr Devereux pointed out what he characterised as inconsistencies in B's statements: for example whether or not B has actually seen the fight between her mother and Mr J on Christmas Day 2009. Miss Hansen thought that there had been some misunderstanding over interpretation of what B had said about that in her first affirmation. Mr. Devereux put it to Miss Hansen that there was an inconsistency between what B had said about going back as recounted by Miss Hansen in her two affirmations and her oral evidence. As summarised by Mr Devereux, she had initially said she would not go back (first affirmation, paragraph [17]), then that if her mother and children went back, she would have to go back (second affirmation, paragraph [8]), then that she definitely would not go back (oral evidence). Miss Hansen acknowledged that B had said different things, but did not think that this amounted to a level of inconsistency that undermined the force of her objections. By the date of the hearing, her views had evolved, so that she was clear she does not want to go back and will not go. Miss Hansen did not think this indicated a lack of maturity. On the contrary, she thought it showed a capacity to reflect on things. Furthermore, Miss Hansen did not agree with Mr Devereux's proposition that B's expressed antipathy towards her father as a result of his attempts to force her to return was a sign of immaturity - in Mr Devereux's words, an inability to separate emotions and feelings towards her father from an understanding of thought processes. Miss Hansen interpreted B as saying that, if her father forced her to do something that she really did not want to do, she would not be interested in a relationship with him. Miss Hansen discussed with B the undertakings that the father had offered. B still objected to returning. Miss Hansen thought that these were her own ideas and not merely aligning herself with her mother.
56. In his closing submissions, Mr Scott-Manderson QC described B's views as amounting to a mature objection, reasoned and based on real experience, rooted in reality having weighed up all the factors. He submitted that it was an overwhelming case for moving to the discretion stage. Mr Devereux demurred. He returned to his theme that there were material inconsistencies in what B had said that were relevant when determining whether there was any objection and also at the discretion stage, if that stage was reached. I think Mr Devereux overstates the significance of the so-called inconsistencies. At no point has B said that she would go back, save at one point when she indicated that, if the rest of her family were forced to go back, then "I suppose I would then have to go". Such a return would manifestly be under duress and could not remotely be described as indicating a willingness to go or anything other than an objection. In any event, B is now saying that she will not go in any circumstances.
57. I am completely satisfied that B has a clear and unequivocal objection to returning to Germany and that she is of an age and degree of maturity at which it is appropriate to take account of her views. This gives the court the discretion to refuse to return her under Article 13. I shall exercise that discretion "in the round" after considering the position relating to R to which I now turn.

R's views

58. When assessing R's views about a return to Germany, whether they amount to objections, and his degree of maturity, it is necessary to bear in mind the psychological assessment carried out by Dr Scott. It has been previously established, and is accepted by all parties in these proceedings, that he suffers from ADHD. This should not prevent him from retaining or considering information when making a decision, but it may mean that he does not take in, or appropriately attend to, everything that is said to him. Dr Scott commented that it had also been suggested that he was on the autistic spectrum, but as already stated Dr Scott concluded that he did not have this diagnosis, although he has some features commonly associated with it: for example, a tendency to talk quickly about matters of interest to him. Dr Scott's tests revealed that he is functioning adaptively at roughly 18 months below his chronological age. She added, however, that this does not equate to delayed development or learning disability, but does indicate that he should not be assumed to be socially, communicatively or adaptively as competent as other 12 year olds. Intellectually he is at the low average level.
59. R was present when B had her first interview with Miss Hansen and also spoke to the solicitor on that occasion. He said that he disliked his stepfather and did not feel safe with him, that he does not want to leave his mother and did not want her to return to Germany because he was worried about the way they used to live. He described to Miss Hansen how he had been hit by Mr J, and as stated above B confirmed that this had happened. He also told Miss Hansen that he did not want to live with his father, although he said he was happy to visit Germany for a holiday and "expressed real joy in spending time with his father". In her oral evidence, Miss Hansen spoke of her preliminary conversation of R saying that he had complained of bullying and the atmosphere at his German school where the other children made him feel angry and unhappy. She said that B had told her that R did not want to go back and wants to stay her. B had said that R does not like his school in Germany and did not like boarding.
60. As explained above, a Cafcass guardian, Ms Jolly, was appointed to represent R and she saw him on two occasions with an interpreter as described in her report. On the first occasion, on 4 June 2010, he reiterated some of what he had said about the school to Miss Hansen, although he did not use the word "bullying". He also repeated what he had said about ill-treatment by his stepfather. He said that he would like to stay in England, and that the school here is better because there are subjects that are not available in Germany. He said that the weather was better. He shrugged his shoulders and said he "did not know" how he would feel if the court made an order that he had to return to Germany, even if this meant he did not have contact with his stepfather or return to his old school. When Ms Jolly asked him if he had any worries about returning home without his mother and sisters, he said he did not have any such worries but seemed to think that they would return with him. In general conversation at the end of this first visit, Ms Jolly elicited the information that R supports Bayern Munich and was intending to support Germany in the World Cup which was then about to start.
61. Ms Jolly saw R for a second time six weeks later on 14 July 2010. By this stage his English had improved significantly. However, he was somewhat less forthcoming in this second conversation. When Ms Jolly asked why they were meeting again, R said it was because his father was horrible for wanting him to return to Germany. Her report continues: "asked what he would do if the judge said he had to return to Germany, R made an open gesture with his hands and said 'don't know'. He screwed his nose up and pointed his thumb down when asked how he would feel if he had to return. He again replied he did not know what he would do if he had to return. R said he knows his mother and B would like to remain in England. Before I even completed the question about any worries he may have that he could return without them, R immediately replied 'don't know'" whereupon he changed the subject.
62. Ms Jolly concluded in her report that "while it may not be commensurate with his chronological age, R nonetheless has attained a degree of maturity whereby it is appropriate to take account of his views." However, whilst she recorded that R has said he did not want to return to Germany, it seemed to her that his views were rooted in a need not to return to a particular situation rather than the country itself. Furthermore, he did not say categorically what he would do if ordered to return and she thought he might be sufficiently biddable to be persuaded with reassurance. Ms Jolly thought, however, that he should not be made to feel undue pressure to impart his views because he seemed to be "very conflicted and feel that he is being expected to choose between his parents". It was Ms Jolly's opinion that R's express views could not be taken as "objections" in Convention terms. She sought to distinguish between an objection and a preference, but to Mr Gupta she accepted that his views were "rooted in reality" and acknowledged that the question whether he had objections which ought to be taken into account was a matter for the court.
63. Mr Devereux obviously relies on Ms Jolly's observation that R's views about returning do not amount to an objection "in Convention terms". Mr Gupta, however, reminded me of the dictionary definition of "objection" as "the action of stating something in opposition to a purpose or thing". He submitted that Ms Jolly's assessment on this point had fallen into the trap identified by Wilson LJ in Re W. Ultimately, this is, as Ms Jolly acknowledged, a matter for the court, and in my judgment, looking at the totality of the evidence, R has clearly indicated that he is opposed to returning to Germany, most obviously by his thumbs down gesture in the second interview. I agree with Ms Jolly that he has attained a degree of maturity whereby it is appropriate to take account of his views. As Baroness Hale noted in Re M (Abduction: Zimbabwe) the nature and strength of his objections are matters to be considered at the discretion stage.

Article 13b

64. Mr Devereux rightly reminds me that there is a very high threshold to be crossed to make out an Article 13(b) defence, especially in a Brussels II Revised case for which compelling evidence is required. Even where an embryonic defence is made out, it may well be neutralised by undertakings or other protective measures that are or can be put in place, and to buttress such measures the court should be proactive and instigate steps in Germany via the European judicial network. In this case the father is willing to undertake not to pursue any ex parte applications in relation to the children; not to separate the children from the mother pending an inter partes hearing in Germany; not to go near any address at which the mother and children will be residing, save for contact; not to promote or encourage any criminal prosecution of the mother for child abduction, and to use his best endeavours to withdraw the complaint already made; to provide reasonable accommodation for the mother and children pending an inter partes hearing; and to pay for maintenance at an agreed rate.
65. On the specific issue of domestic violence, Mr Devereux submits that the court is not in a position to embark on a fact-finding exercise about it. He submits that the court should tread cautiously, bearing in mind what he identifies as inconsistencies in the evidence about such violence put before the court by the mother and B. The father is, of course, not the perpetrator of the alleged violence, and the court cannot utilise undertakings to achieve any protection for the mother and the children. Mr Devereux points out, however, that the German legal system affords remedies to victims of domestic violence, reminds me again of the provisions of Article 11(4) of Brussels II Revised, and submits that the mother has demonstrated, after the incident at Christmas 2009, that she is able and willing to use court orders to achieve protection for the family.
66. On behalf of B, Mr Scott-Manderson QC whilst resting his case principally on the objections defence, contends that there is a real risk that the disruptions caused by violence that have so scarred the family would re-enter the lives of the children on their return to Germany, and that this will impact severely on B. He submits that no child should be required to undergo the stresses and strains that an attempted summary return may invoke in the circumstances which pertain in this case. B has endured life experiences that no child should be expected to endure, and Mr Scott-Manderson QC reminds me of Baroness Hale's observations in Re D (supra), at paragraph [52], that:

"intolerable is a strong word but when applied to a child must mean a situation which this particular child in these particular circumstances should not be expected to tolerate."

Mr Gupta, on behalf of the mother, submits that father has been well aware of the mother's case for a number of months and yet there are no concrete measures in place to ensure that history will not simply repeat itself if she returns with the children.

67. As to this latter point, it seems to me that the absence of any current protective measures against Mr J is not something that necessarily gives rise to a grave risk of harm or intolerable situation. I am confident that, in addition to the undertakings offered by the father, adequate measures could be made to secure the protection of the children, and clearly this will be an appropriate case to engage the European Judicial Network to achieve those measures in as short a period of time as possible.
68. There is, however, another aspect to the Article 13(b) defence that gives rise to greater concern in this case. Were I to conclude that B's objections are sufficient to justify a refusal to return her, the question then arises whether by returning R alone, without B, his mother or A, I would be giving rise to a grave risk of harm or placing him in an intolerable situation. The authorities cited by Ms Honeyman demonstrate that this is a potential conclusion, depending on the facts of the case. In this case I find that, B and R are close in age, 19 months apart, and full siblings who have always lived together. Ms Honeyman reminds me that it is recognised that the sibling relationship is generally the most enduring of all human relationships and of great importance and value to children. Here B and R have gone through difficult life experiences together. It is to my mind noticeable that R was confident in the first meeting with Ms Jolly that if he returned his mother and sister would accompany him, and particularly striking that in the second interview he demonstrated (by answering "don't know" before she had even completed the question) that the prospect of returning without them is extremely difficult for him. Ms Jolly concluded that "potentially summary return may place R in an intolerable situation if separated from his sibling, particularly B whom he has lived with all his life, and from his mother ...To separate the siblings could be a breach of their right to family life."
69. I bear in mind that R loves his father and misses him, but I am in no doubt that to return R without B - and also without his mother and A, but in particular without B - would place him in an intolerable situation. On the facts of this case splitting the siblings at this summary stage would be intolerable. To that extent the Article 13(b) gateway is crossed.

Exercising the discretion of Article 13

70. I have already indicated that I propose to conduct the discretion exercise in the round, scrutinising each of the relevant Article 13 defences in the context of all the others, and adhering to the approach to the exercise of each discretion identified by Baroness Hale in Re M (Abduction: Zimbabwe).
71. Taking first the child's objections defence as stated above, Baroness Hale emphasised that the range of considerations arising in the exercise of the discretion may be wider than in the other exceptions. Pointing out that "taking account" does not mean that the objections are always or presumptively determinative, she listed a number of factors that may arise once the court's discretion is engaged. Those identified in the judgment are:

(1) the nature and strength of the child's objections;

(2) the extent to which they are authentically his or her own;

(3) whether on the other hand they are a product of influence of the abducting parent;

(4) the extent to which they coincide or at odds with other relevant welfare considerations;

(5) the general considerations under the Convention, including the important policy considerations underpinning it.

72. Mr Scott-Manderson QC submits that all these considerations are engaged when a court is considering how to exercise its discretion in respect of B's objections. On the one side, there is a very important matter of the policy under the Hague Convention reinforced by Brussels II Revised to protect children from the harmful effects of their wrongful removal and to ensure their proper return to the state of their habitual residence. On the other hand, as Mr Scott-Manderson QC submits, B's objections have real weight and substance. I find that they are rooted in the reality of her life, a considered appreciation of the advantages of her life in England, and a mature and sober assessment of the damaging effect that domestic violence has had on her life in Germany. B believes that, were she to be returned to Germany, there is a real risk that domestic violence will return to her life. She does not trust her mother's capacity to protect her and her siblings from that violence, unless there is a significant distance between them and Mr J. Mr Scott-Manderson QC submits that the availability of legal measures to protect the family is not a complete answer to her objections. As B told Miss Hansen, she is "worried that if her mother went back to Germany they would end up in the same predicament with Mr J and she [is] worried for R's and A's safety". On the other hand, as she also told Miss Hansen, "here I don't need to worry about R and A and I know they are safe and happy". She has a real direct experience of violence being perpetrated on her mother and the children. She recognises the risks, and feels the need to protect herself and her siblings. Mr Scott-Manderson QC submits that B's objections have not been shaped by pressure from her mother, but are authentically her own; driven by her own life experiences. Furthermore, they coincide with some, though not all, of the other considerations relevant to her future welfare.
73. Mr Devereux in response relied again on what he described as the inconsistencies in B's attitude to return. As I have already indicated, I think he significantly overstates the importance of those alleged inconsistencies, if indeed they can properly be so described. He is on stronger ground when he identifies other welfare considerations which he suggests point in favour of a return. He rightly reminds me that B has spent almost all her life in Germany. As a result, she has strong family links in Germany as well as a network of friends. He points to concerns about the quality of the education she may receive her, citing a poor OFSTED Report on her school in Devon. Most important of all, he says, is the significant damage that will be caused to B's relationship with her father if she is not returned summarily. These factors, combined with the availability of protective measures in Germany which he says is relevant to the exercise of the discretion on the child's objections to defence even if, as I conclude, Article 11(4) of Brussels II Revised only applies to the Article 13(b) defence under the Hague Convention, plus the general policy considerations underpinning the Convention, should, Mr Devereux submits, lead the court to order B's return.
74. I find myself in agreement with Mr Scott-Manderson QC's analysis of the discretion with regard to B's objections. I agree that a preponderance of the factors identified by Baroness Hale in Re M (Abduction: Zimbabwe) point in favour of refusing to return B to Germany on the grounds of those objections. Those objections are, I find, strong, clear, considered, consistent, congruent with many of her welfare interests, and authentically her own. But of course I am not considering B's objections in isolation when exercising the court's discretion. I have to consider them alongside R's position and the discretion that arises as a result of my decision to take account of his objections (as I have found them to be) and also my finding that to return R alone would place him in an intolerable position.
75. As to R's objections, his advocate Ms Honeyman is unable to make submissions as to how the court should exercise its discretion because Ms Jolly has been unable to discern enough about the circumstances when talking to R. On behalf of the mother, Mr Gupta is less inhibited. He submits R's objections, like his sister's, are rooted in reality, namely his experience of abuse, his views about his school in Germany and his preference for life in England. Mr Devereux, on the other hand, points persuasively, in addition to the factors he identified in respect of B, to R's clear association with Germany, (demonstrated by his support for the German football team), and the fact that his functioning difficulties are being addressed with well-established professional support in that country.
76. In contrast to B, R's objections seem to me to be less clear, less strong and less authentically his own, but again I am not considering R's objections in isolation when exercising a discretion. I have to consider them alongside my findings as to B's objections, and I find that to return R to Germany alone would place him in an intolerable position.
77. In Re D (Abduction: Rights of Custody), (supra) Lord Brown of Eaton-under-Heywood in argument and Baroness Hale at paragraph 55 of the judgment pointed out that it is inconceivable that a court which reached the conclusion that there was a grave risk that a child's return would place him in an intolerable position would nevertheless return him to face that fate. Thus, once the court has made the finding that a return would place a child in an intolerable situation, it is highly probable, indeed almost inevitable, that it will exercise its discretion by refusing to return the child. In this case, therefore, I conclude that R cannot be returned alone. The ultimate question is whether I should order that both B and R should return or exercise my discretion by refusing to return either of them.
78. I have reached a clear conclusion, taking the discretion in the round and having regard to all the circumstances, that these children should not be returned summarily to Germany. The fact that returning R alone would place him in an intolerable situation, coupled with both children's objections - in B's case strong clear, considered and consistent objections which are congruent with many of her welfare interests, and authentically her own; in R's case less clear and strong, but nonetheless the established objections of a child who, as his guardian submits, is of an age and level of maturity at which such views should be taken into account - considered together point clearly towards refusing return.
79. In exercising my discretion, I have not for one moment forgotten the very important policy under the Hague Convention as well as the general principles of comity. I have also carefully considered one final authority Mr Devereux deployed in his well-argued and comprehensive submissions on his client's behalf, namely TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515, in which the Court of Appeal (Laws and Arden LJJ, Hale LJ, as she then was, dissenting) reached the opposite conclusion. However, although I have carefully considered that authority, and in particular Arden LJ's analysis, it seems to me that it is of limited relevance to the decision I have to take. First, as Mr Scott-Manderson QC points out, and as the case title selected by the court reporter implies, it is primarily a decision about 13(b). The court at first instance had found that a return to New Zealand would expose the children to psychological harm as well as being contrary to the elder child's objections. The majority of the appellate court held that the judge had failed to take account of protective measures that could be implemented in New Zealand, that no grave risk of harm arose, and that the older child's objections were outweighed by other factors, including the need to keep the siblings together. Secondly, I remind myself that the decision in TB v JB is nearly ten years old and the intervening years have undoubtedly seen an evolution in the court's approach to children's objections for the reason identified by Baroness Hale in both Re D (supra) and Re M (Abduction: Zimbabwe) (supra) at paragraphs [57] and [46] respectively, and latterly by Wilson LJ in Re W (supra) at paragraph [17]. Finally, it is important to note that, for all the citation of authority that characterises abduction cases in this jurisdiction, in most cases the outcome ultimately turns on its own facts.
80. I therefore refuse the father's application for the summary return.
81. That of course is not the end of the story. For, as stated above, under Article 10 of Brussels II Revised, it is the German court that retains jurisdiction in matters of parental responsibility until the children acquire habitual residence in this country, or unless the jurisdiction of the English court is prorogued under Article 12(3) (as to which, see Re I [2010] UKSC 10), or unless the jurisdiction were to be transferred pursuant to Article 15. Assuming the German court retains jurisdiction, this court is then under a strict obligation under Article 11(6) and I will invite submissions from counsel shortly as to how those obligations should be honoured in this case.
82. Furthermore, it must be understood by the mother that, assuming the German court retains jurisdiction this court is bound under Article 11(8) of Brussels II Revised to enforce any orders subsequently made by that court, notwithstanding my decision not to order summary return. That is something that both children need to be aware of. I shall tell B about it when I see her later this afternoon and those that represent R should also ensure that he too understands not only the effect of my order but also the powers of the German court entrusted with the task of making decisions about his welfare.