T (Children), Re

Under Article 13 of the Hague Convention, a child’s objection to return is distinct from the grave-risk defence. The court must determine whether the child objects, whether the child has sufficient age and maturity for the views to be considered, and the strength and validity of those views. Relevant factors include the child’s perspective, the reality of the reasons for objection, parental influence, and whether the objection is likely to diminish on return.

If the objection defence is established, return remains discretionary. The Convention’s policy and comity may be outweighed in an exceptional case by the child’s genuine and mature objections. A younger sibling may also establish Article 13(b) where return alone, because the older sibling is not returned, would create an intolerable situation.

The father wrongfully removed two children, habitually resident in Spain, to England in breach of Spanish court orders. Wall J ordered their return under the Hague Convention, rejecting the father’s reliance on Article 13(b) and the older child’s objections under Article 13.

The older child, G, aged 11, objected to returning to Spain and to her mother’s care. Her younger brother, T, aged six, was too young for his views to be taken into account. The mother also sought recognition and enforcement of a Spanish custody order under the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children. The central issues were whether G’s objection defence was established, whether T could rely on Article 13(b), and whether the children should nevertheless be returned.

1. Appeal allowed. The applications for return under the Hague Convention and for recognition and enforcement under the European Convention were dismissed.
2. Lord Justice Ward held that the Article 13 objection defence requires separate findings on whether the child objects to return, whether the child has sufficient age and maturity for the views to be taken into account, and whether the objection is genuine, sufficiently grounded, and likely to persist. The court should consider the child’s own perception of their interests, the reality of the reasons given, parental influence, and whether return would remove or reduce the objection.
3. G’s objection was genuine and substantially rooted in her experience of her mother’s alcohol misuse. Although her father had influenced and sharpened her views, the evidence showed that they were not simply the product of his influence. Her age, maturity, consistent views and distress established the Article 13 defence.
4. The court retained a discretion whether to order return. The policy of the Convention, comity and the Spanish court’s jurisdiction were powerful considerations, but they did not outweigh G’s mature and genuine objections in the exceptional circumstances of this case.
5. T was too young for his views to be considered. Nevertheless, Article 13(b) was established because returning him without G would expose him to an intolerable situation. The siblings had lived through difficult circumstances together, G had acted as his “little mother”, and their separation would cause serious psychological distress. The test remained the high and stringent Article 13(b) threshold.
6. The court distinguished cases in which an abducting parent created the alleged intolerable situation. Here, G’s objection was founded on the mother’s conduct and was not created by the father’s refusal to return, although that refusal had aggravated the children’s distress.
7. Recognition and enforcement of the Spanish order was refused under Article 10(c) of the European Convention because both children had the requisite nationality connection with the United Kingdom. Article 19 of the Hague Convention made clear that the decision did not determine the merits of custody.

Lord Justice Sedley concurred. Lord Justice Simon Brown agreed with both judgments. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): allowed the father’s appeal from Wall J’s order requiring the children’s return to Spain under the Hague Convention, and dismissed the mother’s applications under both Conventions.
• High Court, Family Division: Wall J ordered the children’s return to Spain and rejected the Article 13 defences.