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The case concerns two children, a 12-year-old girl ('X') and a 6-year-old boy ('Y') who were wrongfully removed from Mauritius to England by their mother on 6 October 2022.

The parents, dual citizens of Mauritius and the United Kingdom ('UK'), lived with their children in the UK until 2019 when the family went to Mauritius, though there is a dispute over the purpose of this trip. The parents married in the UK in 2003 and separated in Mauritius in November 2020. The children stayed with the mother. The father maintained weekend visits with Y, but contact with X, initially through video calls, ended in November 2021. 

In June 2022, the father sought legal action in Mauritius. Mediation led to an arrangement for visits, but it was ineffective. On 7 October 2022, the father was informed by the mother’s solicitor that she had relocated to England with the children. 

The father applied for a summary return order of both children under the 1980 Hague Child Abduction Convention ('1980 Convention'). On 3 February 2023, the judge ordered the summary return of the children, rejecting the Article 13(1)(b) defence and, while acknowledging X's objections to return, exercising discretion to return both children.  However, X later applied to be joined and set aside the order. Ms Broadley was appointed to act as X's solicitor-guardian. The judge set aside the summary return order on 4 April 2023. The father's application was reheard on 4 and 5 May 2023 during which the father sought the summary return of both children or, alternatively, of Y alone. 

The judge dismissed the father's application for the return of both children on 18 May 2023 having had regard to the evidence of X's solicitor-guardian. The current case concerns the father's appeal against that decision.

Appeal dismissed and return refused. The removal was wrongful; however, return was refused because the standard of harm required under Article 13(1)(b) was proven with regard to both children, X and Y. Further, the refusal to return was based on X's objections under Article 13(2). 

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

The father contended that the judge gave disproportionate weight to X's stated objection to returning to Mauritius and failed to consider, inter alia, protective measures properly. The court rejected this argument, holding that the judge's decision had been carefully balanced. As recognised in previous case law, such as re M and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55, the judge has broad discretion under Article 13 regarding a child's objections. 

More generally, the court held that joining a child to 1980 Hague Convention proceedings should be rare, with their views ordinarily conveyed through a Cafcass report instead. 

Issues Relating to Return

The court dismissed the argument that there had been a failure to require the mother's confirmation about returning to Mauritius, accepting that the judge was not obligated to insist on such confirmation, particularly given the father's last-minute change of position about pursuing the return of Y, even without X.

Author: Daisy Holland (Judicial Assistant)