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The mother and father are German nationals. They married in 2005 and had three children. The parents separated in 2012 and the children lived with the mother and had regular contact with the father. German social services became involved in 2014. Contact with the father stopped in 2015 and in 2016 he applied to the German court for contact rights.

In 2018 the mother left Germany with the children and went to Wales. Social services became involved and in 2019 the mother moved to England with the children.

The eldest child, P, said he did not want to return to Germany and the mother argued that there was a grave risk of harm to the children if they were returned.

The judge did not find that the Article 13(1)(b) exception had been made out, noting the existence of protective measures which could be put in place. The judge accepted that all the children were of an age and maturity to make it appropriate to take account of their views but held that their objections to return were outweighed by other factors (including their close ties to Germany and lack of connection to the United Kingdom) and that were not of an age where their views are determinative or free from influence of the mother. The judge ordered the children’s return.

The eldest child, P, appealed the decision arguing that he should have been separately represented in the case and that the judge’s approach to the exercise of his discretion, when P objected to returning to Germany, was also flawed.

The court dismissed the appeal and ordered the return of the children.

Objections of the Child to a Return - Art. 13(2)

The court held that it was clear that the judge had conducted a proper balancing exercise which included the extent to which P’s objections coincided with or were at odds with welfare considerations. Matters of weight are for the trial judge and the court was not persuaded that the judge gave too much weight or insufficient weight to any relevant factor or that he reached a decision which was wrong.

The judge was entitled to decide that the children’s situation would not be such that they should not be ordered to return and that, with the protective measures referred to in the judgment, which included the involvement of the German courts, the broader welfare and other factors present in this case would still justify an order for P’s return to Germany.