S (A Child) (Abduction: Hearing the Child)

S (A Child) (Abduction: Hearing the Child)

The High Court erred in failing to consider whether and how the child should be heard in the proceedings. The obligation to consider the child's voice is integral to the welfare evaluation and to ensuring effective access to justice for the child. The failure to address this issue was a fundamental procedural error requiring the order for summary return to be set aside and the matter remitted for reconsideration.

Parties
Appellant: AM; Respondent: AS
Jurisdiction
England and Wales
Judgment Date
04 December 2014
Procedural Posture
Child Abduction / Summary Return (inherent Jurisdiction) / Appeal From High Court Order for Summary Return
Outcome
Appeal allowed; order for summary return set aside; matter remitted for rehearing
Legal Topics
Child Abduction, Inherent Jurisdiction, Hearing the Child, Welfare Principle, Access to Justice for Children
Family Law Child Law International Law Child Abduction Inherent Jurisdiction Hearing the Child Welfare Principle Access to Justice for Children

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Parties

AM

Appellant

AS

Respondent

Procedural Posture

Child Abduction / Summary Return (inherent Jurisdiction) / Appeal From High Court Order for Summary Return

Legal Issues

  1. 1 Whether the High Court erred in failing to consider if and how the child should be heard in abduction proceedings under the inherent jurisdiction
  2. 2 Whether the child's welfare and wishes were properly considered before ordering summary return

Ratio Decidendi

The High Court erred in failing to consider whether and how the child should be heard in the proceedings. The obligation to consider the child's voice is integral to the welfare evaluation and to ensuring effective access to justice for the child. The failure to address this issue was a fundamental procedural error requiring the order for summary return to be set aside and the matter remitted for reconsideration.

Court Disposition

Appeal allowed; order for summary return set aside; matter remitted for rehearing

Orders

  • Order for summary return of the child to Russia set aside
  • Application remitted to a different judge of the Family Division of the High Court for directions and hearing before end of December