Re S (a minor) (abduction) [1993] 2 All E.R. 683 4 International Abduction [UK 1993] =========================================================== Re S (a minor) (abduction) [1993] 2 All E.R. 683 COURT OF APPEAL, CIVIL DIVISION 16 Jun 92; 17 Jun 92; 07 Jul 92 <* page 683> GLIDEWELL, BALCOMBE LJJ AND BOREHAM J 001 Minor - Custody - Rights of custody - Foreign custody rights - Wrongful removal or retention - Discretion of court to refuse to order immediate return of child - Exercise of discretion - Parents entering into separation agreement under which mother and child would live in France and father would have unrestricted access to child - Mother removing child to England - Father applying for return of child to France - Child objecting to return - No evidence that return of child to France would expose her to grave risk of psychological harm - Whether child had attained age and maturity at which it was appropriate to take account of her views - Whether court could refuse to order return of child to France even though return would not expose her to grave risk of psychological harm - Child Abduction and Custody Act 1985, Sch I, art 13. 002 The child the subject of the proceedings was born in 1982 in England. Her parents met in Indonesia, married in England and had since lived in Borneo, France and Norway before returning to live in Paris in 1991. The father, who was French, was a petroleum engineer whose work took him to many parts of the world. The mother was English. The child had attended French and English schools in Norway and France but had never lived in England. She had a high IQ but also suffered from slight dyslexia. She had long-standing psychological problems which were manifested in speech difficulties and the advice of psychologists and a speech therapist was that she should be educated in her stronger mother tongue, which was English. in 199 1 the parents separated and signed an agreement in Paris, under which the mother and the child would live in the family flat in Paris while the father would live in the family home outside Paris, would provide financial maintenance for the mother and the child and would have unrestricted access to the child. Three weeks later the mother unlawfully removed the child from France and returned to England. The father applied under art 12 of the Hague Convention on the Civil Aspects of International Child Abduction (which had the force of law in the United Kingdom by virtue of s 1(2) of the Child Abduction and Custody Act 1985 and was set out in Sch I thereco) for the immediate return of the child. The judge heard evidence from <* page 684> the court welfare officer that, when interviewed, the child had expressed the strong view that she did not wish to go back to France because she felt awkward and out of place at a French school, that being forced to speak French brought on her speech difficulties and that she felt much happier speaking English and more at ease in England. The welfare officer considered that the child was expressing her own views and not those of the mother, and that she was sufficiently intellectually developed to understand the situation. Thejudge held that the child had attained an age and degree of maturity at which it was appropriate for her views to be taken into account and that in all the circumstances her desire not to return to France was mature, rational and based on genuine and cogent reasons. He dismissed the father's application. The father appealed, contending, inter alia, that, in exercising its discretion under art 13 FN1 to refuse to order the return of a child, the court could only take into account and act on the child's objections if it was also shown that there was a grave risk that return of the child would expose it to psychological harm or place it in an intolerable situation within art 13(b). 003 Held -The court could exercise its discretion under art 13 of the 1985 convention to refuse to order the immediate return of a child to the country from which it had been wrongfully removed solely on the basis that the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of its views, without having to decide under art 13(b) whether the return of the child would expose it to physical or psychological harm or otherwise place it in an intolerable situation, since on the true construction of art 13 those two conditions for refusing the return of the child were separate and unconnected. However, the court had to exercise its discretion in the context of the convention, which was that it was in the best interests of children generally that they should be promptly returned to the country from where they had been wrongfully removed, and therefore it was only in exceptional cases that the court should exercise its discretion to refuse to order an immediate return. Whether a child was of sufficient age and maturity for its views to be taken into account and what weight to give to those views were matters for the court to decide, in the light of the circumstances of the case. on the facts, and in the exceptional circumstances of the case, it was clear that the child's reasons for objecting to being returned to France had substance and were not merely a desire to remain in England with the mother, and that she had attained an age and degree of maturity at which it was appropriate to take account of her views. it followed that the appeal would be dismissed. Notes 004 For the civil aspects of international child abduction and the return of children wrongfully removed, see 1992 Supplement to 8 Halsbury's Laws (4th edn) para 525A. 005 For the Child Abduction and Custody Act 1985, Sch Y, art 13, see 6 Halsbury's Statutes (4th edn) (1992 reissue) 313. 006 Cases referred to in judgment A. (Minors), (Abduction: Custody Rights), In re [19921 Fam. 106 [1992] 2 W.L.R. 536 [1992] 1 All E.R. 929, C.A. G. v. G. (Minors: Custody Appeal) [1985] 1 W.L.R. 647 [1985] 2 All E.R. 225, H.L.(E.) Layfield v. Layfield (unreported), 6 Dec 1991, Australian Family Court <* page 685> M. (Minors), In re (unreported) 25 Jul 1990, unreported, Fam. D. R. (A Minor: Abduction), In re [1992] 1 F.L.R. 105 Wilson v. Challis (unreported) 19 Mar 1992, Ont. Ct (Prov Div). 007 Cases also cited or referred to in skeleton arguments A. (A Minor) (Abduction), In re [1988] 1 F.L.R. 365, C.A. C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 W.L.R. 654 [1989] 2 All E.R. 465, C.A. N. (Minors) (Abduction), In re [1991] 1 F.L.R. 413 P. v. P. (Minors) (Child Abduction) [1992] 1 F.L.R. 155 S. (A Minor) (Abduction), In re [1991] 2 F.L.R. 1, C.A. Appeal 007 The father of a minor appealed against the order of Ewbank J in chambers dated 17 January 1992 dismissing his application under the Child Abduction and Custody Act 1985 for an order for the return of the child to France. The facts are set out in the judgment of the court. 008 Patricia Scotland QC and Henry Setright (instructed by Margaret Bennett) for the father. 009 Allan Levy QC and Brian Jubb (instructed by Taylor Joymson Garrett, agents for Moore & Blotch, Southampton) for the mother. Cur adv vult 7 July 1992. 010 The following judgment of the court was delivered. BALCOMBE LJ. 011 This appeal, from an order of Fwbank J made on 17 January 1992 whereby he dismissed an application under the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October ig8o; TS 66 (1986); Cm 33) (the Hague Convention) for the return to France of a nine-year-old girl, raises once again a question under art 13 of that convention. 012 The child, C, was born on 9 August 1982. Her mother is English, aged 48; her father is French, aged 46. The father is a petroleum engineer whose work takes him to many parts of the world. The parents met in Indonesia, where the mother was working as a secretary with the United Nations. They married in England in 1979. When the mother became pregnant with C (their only child) they were living in Borneo. 013 The mother came back to England for her confinement and spent a few months in England after C's birth, but then returned with C to the father in Borneo. In September 1984 the family moved to Paris, France. In September 1985 the family moved to Harstad, Norway. In November 1986 the family moved back to Paris, and C spent two months in a French school. In February 1987 they moved to Stavanger, Norway. From February to June 1987 C attended a French school in Norway. From September 1987 until they left Norway in March 1991, C attended the Stavanger British School. In March 1991 the family returned to Paris as their home, where they lived in a flat in the Place des Vosges; there is also a house at Maisons-Laffitte, just outside Paris. Apart from the short time after her birth, and for occasional holidays since, C has never lived in England. 014 Unfortunately C has long-standing psychological problems. These have manifested themselves in speech difficulties-stammering and stuttering-and it was as a result of the advice of a French speech therapist that C should be educated in her stronger mother tongue (English) that C was moved to the British School in Stavanger. This advice has been confirmed by the reports of psychologists, <* page 686> both French and English, which were put in evidence by the mother. These reports show that C has a high IQ and the mental age of a child of 12; she also suffers from dyslexia, although the problem is not acute. 015 On the family's return to Paris in March 1991, C was sent to the local school near the flat in the Place des Vosges, and she attended that school until the mother brought her to England on 24 November 1991. A letter from the headmistress of that school, addressed to c'whom it may concern', was also in evidence, from which it is clear that C's speech and other problems were very apparent to the headmistress, and that C was also affected by the dissensions between her parents. The marriage had been in difficulty for some years, and by the autumn of 1991 the parents were ready for a divorce. On the advice of their lawyers they entered into a voluntary deed of separation, which provided that the mother should live in the Paris flat with C, while the father should live in the house at MaisonsLaffittes, with an unimpeded right of access to C. The deed made provision for the financial maintenance by the father of the mother and C. 016 The deed was signed on 7 November 1991, and in accordance with its provisions the father moved out of the Paris flat on Saturday, 9 November 1991. On the same day he gave the mother a cheque for 6,000 French francs, maintaining that a third of the month had already elapsed. Whether or not this was correct, the fact is that the mother had run out of money by 22 November. The father refused to give her more; the mother sold her rings for about œ250, and she then decided to leave France with C. This she did on Sunday, 24 November, and she came to England, to the Southampton area where her family lives, to a house forming part of the estate of her deceased mother and which belongs beneficially to her sister and herself She immediately put C into the local junior school and that position has continued up to the present time. 017 On 20 December 1991 the father made an application for the return of C under the Child Abduction and Custody Act 1985, by which (see S I) the provisions of the Hague Convention are incorporated into our domestic law, and it was that application which came before Ewbank J on 15 January 1992, and which resulted in the order from which the father now appeals. 018 Before the judge it was common ground (as it was before us) that the mother's removal of C was wrongful under art 3 of the Hague Convention, and that prima facie the court was bound to order the immediate return of C to France under art 12. The issues before the judge were whether he had a discretion not to order C's immediate return under art 13 and, if so, whether he should exercise the discretion in favour of allowing her to stay here. 019 The two grounds under art 13 upon which the mother relied were: (i) under para (b), that there was a grave risk that C's return would expose her to psychological harm. The judge rejected this ground and, although it was raised again by the mother in her respondent's notice on the appeal, as well as an alternative ground under para (b) that C's return would place her in an intolerable situation, these grounds were expressly abandoned before us by the mother's counsel, Mr Allan Levy QC. Accordingly we do not consider them further. (ii) That C objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her views. This was the ground upon which thejudge relied in refusing to order Cs return to France. 020 The mother's affidavit was largely devoted to C's psychological problems and her learning and language difficulties, but it included the following passage: 'On many occasions [C] has indicated to me that she does not wish to return to France ... [C] has expressed extremely strong feelings about returning to France, and she has an age and degree of maturity where it would be appropriate to take accont of her views.' <* page 687> 021 There was no independent evidence of C's views, but the judge was invited to see C. He took the view that it would not be appropriate for him to do this, but he asked the duty court welfare officer, Mrs Varley, to do so. Mrs Varley had a long interview with C and gave her report orally in evidence to the court. In view of the importance of this report, we set out below the relevant passages from the transcript of Mrs Varley's evidence: 'Mrs Varley: I saw [C], my Lord, in my office on her own and I would say as a preamble that she is a very fluent and sophisticated conversationalist. It was very easy to interview this child, so much so that she would see the drift of my questions and pre-empt them with an answer. I would sum up what she said to me in her own words. She said would I tell the judge really, really strongly that she does not want to go back to France. She does not want to go back to France because she feels great in England, was how she put it. Ewbank J: She feels great in England? Mrs Varley: Yes. She had obviously had a miserable experience going to school in France, from her own account. She said she felt awkward and like a fish out of water at a French school. She tried to illustrate that by saying that "Two won't go into seven". That was her way of illustrating that, that she felt so out of place. She said that being forced to speak French, she thought, brought on her stammer which made her feel bad. She illustrated on how going from France to a holiday in England her stammer had almost miraculously gone at the airport, and she sees that as a sign of how much happier she feels speaking English. She fell under pressure, she said, from her father while she lived in France to, I suppose, do some sort of remedial work to catch up in the French school system and so that was a sad experience for her too. She made a very, very emotional plea that she feels more at ease in England and she feels it is more natural for her to speak English and to be English.' 022 Then in cross-examination by Mr Setright: Ewbank J: Did you have any feeling that the view she was expressing was an impassioned plea put into her mouth by her mother or was she expressing her own views? Mrs Varley: I certainly did not think they were rehearsed, my Lord. She was able to separate, when I led her that way, the feelings of a parent and as a child. She could appreciate that children are influenced by their parents'views, but she seemed to feel quite strongly that she was not. Mr Setright: Did you think that she was mature enough for her feelings to be taken into account by the court? Mrs Varley: Well, she is certainly intellectually mature enough to know what the situation is that she is in. Emotionally she is still a child of that age. She is still emotionally very fragile. Mr Serright: But would you give weight yourself to her views? Mrs Varley: Yes, I would. I think she feels very strongly a dread of going back to France and she feels more comfortable in England.' 023 In the light of the arguments that were presented to us by Miss Patricia Scotland QC, on behalf of the father, it will be convenient to record that the mother, in her evidence, accepted that it would be appropriate for C to spend prolonged periods of staying access with the father in France, and also to set out certain passages from the father's oral evidence. In evidence-in-chief he was asked: 'Mr Setright: You have heard the oral report of the court welfare officer this morning, have you not? The father: [No audible reply.] Mr Setright: Is there anything that you want to say about that, having heard it? The father: No. I am happy to know anyway that [C] is happy to be in England, this for sure-is happy to be <* page 688> at an English school rather than a French school. if she is doing well, I am happy for her. Mr Setright: But is it still your wish ... Ewbank J: I do not quite follow what you mean by that- "if she is doing well, I am happy for her". You do not mean you are happy for her to stay here? The father: No. Because I still think that a father/daughter relationship is much more important than feeling better at school ... Mr Setright: You have already dealt with accommodation. What education would be available to [C]? Where would she go to school? The father: The French school was chosen because it was conveniently 300 metres from the flat. it was where our daughter had been a couple of months before, four years ago. Mr Setright: The same school that she had been in some years before? The father: That is right. But if she prefers to go to [a] British school, if it is that important, we can always try to find a solution. Paris is a big town and there are possibilities for [C] to go to a fully or partly English-speaking school. Mr Setright: Have you done any research into that? The father: I have contacted a British school but it is not conveniently located for the flat in Paris or the house in Maisons-Laffitte. Mr Setright: About how far away is it? The father: I have made investigation and they would be ready to accept our daughter provided they have interview with the parents before. Mr Setright: How far away from the Place des Vosges is that? The father: I would say it is a good hour and half's travel one way. Mr Setright: But there are other English schools which you have not invesiigated? The father: In Maisons-Laffitte there are schools where there is possibility to follow English even at a small age. There is an Anglican church. There is Brownies. There is quite a small active British community. Mr Setright: So far as [C's] future is concerned, what language or languages had you and your wife felt that she should speak? ... The father: It is important that she has both British and French, so it is important that she keeps both languages. Mr Setright: Despite the stuttering difficulty, does she speak French? The father: Yes ... Mr Setright: In your view, and of course it is only your view, knowing [C] and knowing your wife and knowing the living circumstances in France, do you think it would be very distressing and difficult for [C] to come back to France now? The father: I would have said not but I was probably somewhat shaken by the lady's report this morning. Mr Setright: If she came back, is there anything you think you could do to reassure her? The father: My daughter? Mr Setright: Yes. The father: For sure I will tell her that she can count on me, that I love her. If she wants to do something, if she wants to live in Place des Vosges she can live in Place des Vosges. If she wants to live in Maisons-Laffitte, she can live in Maisons-Laffitte. I mean, this is the only daughter that we have. We live for our children and I do not want to do something which can hurt her and. . . ' 024 Subsequently the father gave evidence which seemed,to indicate that he had not previously appreciated that C's problems were attributable to her having to speak French and attend a French school. However, when the direct, question was put to him, he answered in the following passage: <* page 689> Mr Serright: But you being a concerned father, as you have made plain to this court, so far as [C) being at a French school in Paris is concerned, you have seen the report from that school. The father: True. Mr Setright: In that report it shows or indicates that [C] was not very happy? The father: I am ready to try to find a better school. What I would say, I think big city centres are not the proper place to raise children.' 025 We were also told that, in his final submissions to Ewbank J, Mr Setright offered the following undertakings on behalf of the father if C were returned to France: (i) the father would allow the mother to remain in the flat in the Place des Vosges separate and apart from him and to have care and control of C; (2) C would go to an English-speaking school; (3) the financial arrangements in the deed of separation would continue. 026 The reasons for thejudge's decision are contained in the following passage from hisjudgment. After recording the effect of Mrs Varley's evidence, and mentioning Dr Hales's assessment of C's mental age as being about 12, he said: 'Accordingly, I have to decide whether the age and maturity of [C] make it appropriate that I should take account of her views. To some extent, of course, I have to see what those views are and what they entail. It seems to me that the view she has put forward, looking at the whole circumstances of her life, is a mature and rational view which seems to be based on genuine and cogent reasons. I would go further and say I think it is probably in her best interests. I am not entitled under the Hague Convention to consider the best interests of the child in the ordinary way, but, in deciding whether the views are mature, if they coincide with what seems to me to be the best interests of the child, I am entitled to take that into account in assessing her maturity. In my view the view she has formed is an intelligent and sensible decision. Accordingly, I am in a position where I may refuse to order the return on that ground. Since my own preliminary assessment of the case is that, at any rate, at this stage [C] should remain in England with her mother. I refuse to make the order under the Hague Convention.' 027 The arguments which were addressed to us fell under three distinct heads, although they were not so conveniently separated in the submissions of counsel. 028 (1) The construction of art 13 so far as it relates to the child's objection to being returned. For convenience, future references in this judgment to art 13 are to be taken as referring only to that part of the article unless the context otherwise requires. 029 (2) The establishment of the facts necessary to 'open the door' under art 13. 030 (3) The factors relevant to the exercise of the discretion under art 13 once the door is opened. 031 Before we turn to consider these arguments, it will be convenient to set out the relevant provisions of art 13 as set out in Sch I to the Child Abduction and Custody Act 1985: 'Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that --- (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. <* page 689> The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. . . The construction of art 13 032 It will be seen that the part of art 13 which relates to the child's objections to being returned is completely separate from para (b), and we can see no reason to interpret this part of the article, as we were invited to do by Miss Scotland QC, as importing a requirement to establish a grave risk that the return of the child would expose her to psychological harm, or otherwise place her in an intolerable situation. Further, there is no warrant for importing such a gloss on the words of art 13, as did Bracewell J in Re R (a minor: abduction) [1992] 1 FLR 105 at 107-108: 'The wording of the article is so phrased that I am satisfied that before the court can consider exercising discretion, there must be more than a mere preference expressed by the child. The word "objects" imports a strength of feeling which goes far beyond the usual ascertainment of the wishes of the child in a custody dispute.' 033 Unfortunately Bracewellj was not referred to the earlier decision of Sir Stephen Brown P in Re M (minors) (25 July 1990, unreported), in which he rightly considered this part of art 13 by reference to its literal words and without giving them any such additional gloss, as did Bracewell J in Re R (a minor) (abduction) 034 As was also made clear by Sir Stephen Brown P in Re M (minors), the return to which the child objects is that which would otherwise be ordered under art 12, viz an immediate return to the country from which it was wrongfully removed, so that the courts of that country may resolve the merits of any dispute as to where and with whom it should live: see, in particular, art 19. There is nothing in the provisions of art 13 to make it appropriate to consider whether the child objects to returning in any circumstances. Thus, to take the circumstances of the present case, it may be that C would not object to returning to France for staying access with her father if it were established that her home and schooling are in England, but that would not be the return which would be ordered under art 12. The establishment of the facts necessary to 'open the door' under art 13 035 The questions whether (i) a child objects to being returned and (ii) has attained an age and degree of maturity at which it is appropriate to take account of its views are questions of fact which are peculiarly within the province of the trial judge. Miss Scotland submitted that the child's views should not be sought, either by the court welfare officer or the judge, until the evidence of the parents has been completed. We know of no justification for this submission. She also asked us to lay down guidelines for the procedure to be adopted in ascertaining the child's views and degree of maturity. We do not think it is desirable that we should do so. These cases under the Hague Convention come before the very experienced judges of the Family Division, and they can be relied on, in those cases where it may be necessary to ascertain these facts, to devise an appropriate procedure, always bearing in mind that the convention is primarily designed to secure a speedy return of the child to the country from which it has been abducted. 036 It will usually be necessary for the judge to find out why the child objects to being returned. If the only reason is because it wants to remain with the abducting <* page 691> parent, who is also asserting that he or she is unwilling to return, then this will be a highly relevant factor when the judge comes to consider the exercise of discretion. 037 Article 13 does not seek to lay down any age below which a child is to be considered as not having attained sufficient maturity for its views to be taken into account. Nor should we. In this connection it is material to note that art 12 of the UN Convention on the Rights of the Child (20 November 1989; TS 44 (1992) Cm 1976) (which has been ratified by both France and the United Kingdom and had come into force in both countries before EwbankJ's judgment in the Present case) provides as follows: '1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.' 038 In our judgment, no criticism can be made of the decision by Ewbank J to ascertain C's views or of the procedure which he adopted for that purpose. There was evidence which entitled him to find that C objected to being returned to France and that she had attained an age and degree of maturity at which it was appropriate to take account of her views. Those are findings with which this court should not interfere. The exercise of the discretion under art 13 039 The scheme of the Hague Convention is that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they have been wrongfully removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return. That discretion must be exercised in the context of the approach of the convention-see Re A and anor (minors) (abduction: acquiescence) [1992] 1 All ER 929 at 942, [1992] Fam 106 at 122 per Lord Donaldson MR. 040 Thus if the court should come to the conclusion that the child's views have been influenced by some other person, eg the abducting parent, or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views. Any other approach would be to drive a coach and horses through the primary scheme of the Hague Convention. Thus in Layfield Y Layfield (6 December 1991, unreported) in the Family Court of Australia Bell J ordered an 11-year-old girl to be returned to the United Kingdom because he found that, although she was of an age and degree of maturity for her wishes to be taken into account, he believed that those wishes were not to remain in Australia per se, but to remain with her mother, who had wrongfully removed the girl from the United Kingdom to Australia. On the other hand, where the court finds that the child or children have valid reasons for their objections to being returned, then it may refuse to order the return. 041 Thus in Re M (minors) (25july 1990, unreported) the court refused to order the return of three children aged 11, 9 and 8 to America. In the course of his judgment Sir Stephen Brown P said: <* page 692> 'I am, however, concerned for the children. I find that they do object to being returned and that each of them has attained an age and a degree of maturity at which it is appropriate to take account of their views. I feel that I must take account of their views. Their views are not, however, determinative of the position and I have to consider how far they should affect me. I feel that I should give effect to their objection in this case in the light of the fact that they give valid reasons, in my judgment, for objecting to going back to America into the case of their father, because of his former conduct. I consider that he has materially admitted this. I do not, therefore, propose to order their return. That is the sole extent of the order that I make. I do not determine custody rights or access rights or any other rights as between the parties. But in the light of the children's objections to being returned, I decline to order their return under the terms of the convention and the provisions of the Child Abduction and Custody Act 1985.' 042 A similar result was reached in the Canadian case of Wilson v Challis (19 March 1992, unreported), where Foran J, sitting in the Ontario Court (Provincial Division) and following the decision in Re M (minors), refused to order the return of an 11-year-old boy to his father in England for what appeared to be good and valid reasons. 043 In the present case C objected strongly to being returned to France. Her reasons, as given to Mrs Varley, had substance and were not merely a desire to remain in England with her mother. This court cannot interfere with the judge's exercise of his discretion unless he took into account some irrelevant factor, left out of account some relevant factor or was plainly wrong-see G v G [1985] 2 All ER 225, [1985] 1 WLR 647. It could not seriously be suggested that Ewbank J took into account an irrelevant factor. However, he did not, in the course of his judgment, mention the father's undertaking that if C were returned to France she could attend an English-speaking school. Since this undertaking had been offered by Mr Setright on behalf of the father in the course of his final submissions to the judge, it is impossible that the judge was unaware of it. It might have been preferable if he had made express reference to it in his judgment, but we are quite unable to say that he failed to take it into account. The judge may well have found it surprising that the father was unaware of Cs distress at attending a French school until he heard Mrs Varley's evidence, and he may have considered the father's proposals to send C to an English-speaking school in Paris somewhat imprecise and by no means fully considered. In these circumstances we are quite unable to say that his decision to return C to France, even having regard to the fathees undertakings, was plainly wrong. 044 Nothing which we have said in this judgment should detract from the view, which has frequently been expressed and which we repeat, that it is only in exceptional cases under the Hague Convention that the court should refuse to order the immediate return of a child who has been wrongfully removed. This is an exceptional case and accordingly we dismiss this appeal. 045 Appeal dismissed. No order as to costs. L I Zysman Esq Barrister.