AJ v JJ & Ors: The wishes of the children in abduction cases

In AJ v JJ & Ors [2011] EWCA Civ 1448 the court was required to deal with the situation where the children wished to have their views heard in an abduction case.

Lord Justice Thorpe
The Facts: As Lord Justice Thorpe said giving the leading judgment, on the face of it this was a paradigm case for a return order. The parents are Polish and had three children, now aged 15, 13 and 10. They separated in 2005 and in 2006 the Polish court awarded custody to the father.

The mother subsequently emigrated to this country and obtained an order in Poland providing for her to have holiday contact with the children in this country. Pursuant to that order, she collected the children on the 5th July this year, and was due to return them on the 26th July. However, on the 25th July she issued an application to the Polish court for custody, and for the children's relocation to this jurisdiction.

When the mother failed to return the children on the 26th July, the father issued an application for their return under the Hague Convention.

The mother raised an Article 13b defence, but this was "hardly pursued", and effectively the only issue for trial was her other defence, i.e. the children's stated objections to return.

The Judge granted the application for return, although it was not clear whether he did not find that the children objected, or whether he found that they did object, but he nevertheless ordered their return, exercising his discretion under Article 13.

The children then applied for leave to intervene and for permission to appeal.

Held: Counsel for the children submitted that he was entitled to succeed on two grounds.

The first ground was that the Judge had fallen into error by not of his own motion ordering separate representation for the (mature and articulate) children, or alternatively that the Judge should of his own motion have required a meeting with the children to gauge their true positions and particularly to involve them in the process, as "it was simply unacceptable for the Judge to impose on the children the return that they dreaded without engaging them in the process".

The second ground was that the Judge had failed to make a clear finding on what was effectively the primary issue in the case, namely did the children object to return.

Lord Justice Thorpe held that the children should succeed on the second ground. He said (at paragraph 29):
"A clear finding that the children's objection had not been made good would have been the end of case and presented the mother with a single and clear ground of appeal. Equally a proper exercise of the discretion would only be triggered and conducted by an unequivocal finding that the objections had been made good."
As to the first ground, he held (at paragraph 30) that the submission that the Judge of his own motion should have joined the children as parties was unsustainable. However, he was "impressed" by the submission that the Judge should of his own motion have engaged the children in the process (paragraph 31), and felt that he had erred by not at least raising with the parties the need for him to meet the children face to face (paragraph 41), particularly in the light of recent guidance, such as Lord Justice Thorpe's own judgment in Re G (Abduction: Children's Objections) [2011] 1FLR 1645.

Sir Mark Potter and Lady Justice Hallett agreed.

The application was therefore granted and the case remitted for re-hearing.