Family Law Hub

K v B [2014] EWHC B7 (Fam)

Mother's application for a return order in respect of a 15 year old Hungarian boy who was living in the UK with his father.

  • In brief:  This case involved a teenage boy, N, who was fifteen at the time of the hearing. He and his parents were Hungarian. N's father ("F") had lived in England since 2011 whilst N and his mother ("M") had remained in Hungary. In summer 2013, N came to England; now, there was a factual dispute between the parents as to whether or not this was intended to be a permanent move. As there was no proof that M had given "clear and unequivocal" consent to N remaining in England, the court was bound to find that she had not given such consent. Therefore, as N's habitual residence was in Hungary, as a matter of law F had wrongfully retained him when he did not return to Hungary in the summer of 2013. M started proceedings for N's return. 

    The spanner in M's works was N's clear wish to remain living indefinitely in England and to complete his education here.

    In light of N's age and understanding, the judge took the view that he ought to be more involved in the proceedings. He was therefore invited to attend court during the course of the hearing and spoke to the judge in private in the presence of an interpreter and the CAFCASS Officer.

    The court had to apply Article 13 Hague Convention 1980 which provides that the court may refuse to order a child's return if the child objects and has attained the age and degree of maturity at which it is appropriate to take account of their wishes. The test to be applied was set out in Re M [2007] EWCA Civ 260, where it was stated that the court should ask itself three questions:

    • Whether the children's objections to a return are made out; 
    • Whether the age and the maturity of the children is such that it is appropriate for the court to take account of the objections; and 
    • Whether the court should exercise its discretion in favour of a retention or return.

    It is not enough that a child simply expresses a preference for remaining in a new country (Re K [2010] EWCA Civ 1546) and it is only in exceptional circumstances that  the court has the discretion to refuse to order an immediate return. In this case, it was common ground that N had reached the relevant age and maturity and therefore his objections needed to be considered. The judge concluded that N's strong preference to remain in England amounted to a strong, clear, thoughtful, balanced and rational objection to returning to Hungary. This was therefore one of those exceptional cases where it was appropriate for the court to exercise its discretion not to order the child's summary return on the basis of the child's objections.

Case note, published: 11/03/2014

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See also

  • Mother's application for a return order in respect of a 15 year old Hungarian boy who was living in the UK with his father. The judge refused to make the order because of the child's age, maturity, expressed views and the reasons for his views. Judgment, 21/02/2014, free

Published: 11/03/2014

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