C v C

Under Article 13 of the Hague Convention, a child’s objection to return is discretionary. The court must consider the child’s reasons, age and maturity, the strength and reality of the objection, possible influence, and whether the objection may diminish after return. The Convention’s policy favouring prompt return remains important. A grave-risk defence requires clear and compelling evidence of substantial harm or intolerability beyond the ordinary disruption of return. Protective arrangements, including accommodation, financial support, legal representation and undertakings against criminal proceedings, may remove or materially reduce an alleged risk. Sibling objections must be assessed separately, although the consequences of separating siblings remain relevant.

The father sought the return of two children from England to Germany under the Hague Convention after the mother retained them following a half-term holiday. The children had been habitually resident in Germany under a prior consent order. The mother accepted the wrongful retention but relied on their objections to return and the alleged grave risk of physical or psychological harm under Article 13.

The children’s views had become more strongly expressed after their arrival in England. The court considered reports from a German youth welfare officer and a CAFCASS reporter, the mother’s proposed return to Germany, available welfare and legal support, existing German proceedings, and the father’s undertakings.

1. Return ordered. The children were to be returned to Germany on the father’s undertaking not to commence criminal proceedings against the mother and his offer of financial assistance.
2. For the children’s-objections defence, the court considered why each child objected, their age and maturity, the strength and validity of their views, the extent to which the views were based on reality or influenced by the mother, and whether the objections would be reduced on return. This reflected the approach identified in Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192.
3. Both children were sufficiently mature for their views to be taken into account. JA’s objections carried weight when considered in isolation, but their increased intensity after arrival in England, the mother’s influence, and the timing and manner of the disclosure of his biological paternity reduced their weight. JE’s objections were weaker and were not determinative.
4. The court treated the policy of the Convention as important, including the need for parents to be able to permit foreign visits knowing that children will be returned. The reasoning in Re HB (Abduction: Children’s Objections) [1997] 1 FLR 392 was applied to the assessment of both objections and grave risk.
5. The Article 13(b) defence failed. The allegations of difficult relationships, inappropriate chastisement and school problems did not amount to the clear and compelling evidence of substantial harm required by Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145. The arrangements for the mother in Germany, together with the father’s undertaking and financial offer, ensured that the mother and children could remain together pending determination by the German court.
6. The existence of German proceedings did not itself justify refusal to return. Re L [2002] 2 FLR 1042 was distinguished because the relevant proceedings in that case followed removal, whereas German proceedings here pre-dated the wrongful retention.