D (Children), Re

D (Children), Re

The judge's exercise of discretion was tainted by misunderstandings of fact and failure to separately evaluate the father's secondary case for return in the mother's care, leading to an incorrect refusal of the return order.

Parties
Applicant: French father; Respondent: Mother
Jurisdiction
England and Wales
Judgment Date
09 August 2011
Procedural Posture
Child Abduction (hague Convention) / Appeal From Family Division Judgment
Outcome
appeal allowed
Legal Topics
Hague Convention, Child Return Orders, Judicial Discretion, Child Objections, Primary Care Determination
Family Law International Child Abduction Hague Convention Child Return Orders Judicial Discretion Child Objections Primary Care Determination

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Parties

French father

Applicant

Mother

Respondent

Procedural Posture

Child Abduction (hague Convention) / Appeal From Family Division Judgment

Legal Issues

  1. 1 Whether the judge properly exercised discretion under Article 13 of the Hague Convention after finding the child objected to return
  2. 2 Whether the judge sufficiently considered the father's secondary case for return in the mother's care
  3. 3 Whether factual misunderstandings tainted the exercise of discretion

Ratio Decidendi

The judge's exercise of discretion was tainted by misunderstandings of fact and failure to separately evaluate the father's secondary case for return in the mother's care, leading to an incorrect refusal of the return order.

Court Disposition

appeal allowed

Orders

  • Return order granted for the children in the care of their mother with protective measures to ensure smooth transfer and opportunity to apply to French court