(Court of Appeal; Sir Mark Potter P, Rix and Wilson LJJ; 27 March 2007)
The British mother acknowledged that she had wrongfully removed the child from Serbia, where she and the child had been living separately from the child's Serbian father, but argued that a return would expose the 7 year old child to a grave risk of harm or put her in an intolerable situation, and also raised in defence the child's objections to a return. Although there was credible independent evidence that there had been significant harassment of the mother in Serbia, including several episodes of planting drugs on the mother and arranging police visits to the mother's home, the judge concluded that the defence under Art 13(b) of the Hague Convention (the Convention) had not been made out, and that the child ought to be returned on the basis of undertakings. The CAFCASS officer had reported that the child was a troubled and anxious child who feared for her mother's safety in Serbia, and feared that she would be separated from the mother, but the judge did not address directly the issue of the child's objections.
Allowing the mother's appeal, the President held that the judge had been wrong not to consider the child's objections, which were strong, and exceptional in the sense of the unusual circumstances underlying them, namely a campaign by someone bent upon planting drugs upon the mother in an effort not simply to harass her but to secure her arrest, prosecution and imprisonment. These were unusual and exceptional circumstances and the emergent welfare considerations, when balanced against the Convention considerations, were strongly in favour of a refusal to make an order for return, notwithstanding the fact that the mother had removed the child during concurrent custody proceedings in Serbia. Given the solid foundation for the child's objection to being returned, there was no need to reconsider the judge's rejection of the defence under Art 13(b).