JPC v SLW & Anor

In Hague Convention return proceedings, a child’s objections involve three questions: whether the objections are established, whether the child has sufficient age and maturity for them to be considered, and whether the court should exercise its discretion to refuse return.

Even strong objections and significant welfare concerns do not necessarily justify retention. The court must balance them against Convention considerations, including comity, respect for the foreign court and the Convention’s purpose. Where the foreign court is plainly the forum best suited to determine welfare, return may be ordered, subject to safeguards ensuring prompt consideration there.

The mother applied for the return of her fourteen-year-old daughter to Ireland under the Child Abduction and Custody Act 1995, the Hague Convention and Council Regulation EC No 2201/2003 (Brussels II Revised). The father accepted that the removal from Ireland was wrongful but relied on alleged consent or acquiescence, the child’s objections and the Article 13(b) defence.

The child had been joined as a defendant and was separately represented. She wished to remain in England with her father, citing family conflict, living conditions, schooling and concerns about her mother’s health. The central issues were whether the defences were established and, if so, whether return should nevertheless be ordered.

1. Consent and acquiescence. The mother’s angry statements that the child should live with her father were expressions of distress rather than genuine consent. The evidence did not establish acquiescence to the removal or to a change of residence.
2. Child’s objections. The child’s objections were clear and firmly held. Her age, intelligence and maturity made it appropriate to take them into account under Article 11.2 of Council Regulation EC No 2201/2003. Following S v S (Child Abduction)(Child’s Views) [1992] 2 FLR 492, Zaffino v Zaffino (Abduction: Child’s views) [2006] 1 FLR 410 and Vigreux v Michel [2006] EWCA Civ 630, the court had to consider whether the objections existed, whether they should be taken into account, and whether discretion should be exercised against return.
3. Exercise of discretion. The child’s objections and welfare concerns were substantial, but the case was not an exceptional one warranting retention in England. Those concerns had to be balanced against the strong Convention policy, comity and respect for the Irish judicial process. The Irish courts were the forum best suited to determine the child’s future welfare.
4. Intolerable situation. The Article 13(b) defence was not established. The evidence did not include the medical, psychiatric, school or other material ordinarily needed to demonstrate the required level of intolerability.
5. Order. Return to Ireland was ordered. The mother undertook to facilitate a swift welfare hearing in Dublin and to avoid violence and interference with the child’s communications and contact with her father. Enforcement was stayed until the first directions hearing before the Dublin High Court, where any further postponement could be considered.