W (Minors)

Under the child-objections defence in Article 13 of the Hague Convention, a young age does not by itself prevent a child’s objections from being considered. The threshold for taking account of the child’s views is fairly low, although it remains bounded by age and maturity.

The Convention’s objective of swiftly restoring abducted children carries significant weight when the court decides whether an objecting child should nevertheless return. Younger children’s objections generally attract less weight. An appellate court should interfere with the trial judge’s evaluative balance only where the decision is plainly wrong, including where the weight given to a factor is aberrant.

The father sought permission to appeal against Black J’s refusal to order the immediate return of his three children to Ireland under the Child Abduction and Custody Act 1985. Their removal to England had been wrongful.

Black J rejected defences based on acquiescence and, subject to the youngest child’s position, grave risk. She found that the two older children objected to returning to Ireland and had sufficient age and maturity for their views to be considered under Article 13 of the Hague Convention. She exercised her judgment against returning them. She also refused to return the youngest child because separating him from his siblings and possibly his mother would create a grave risk of psychological harm or an intolerable situation.

The proposed appeal challenged the findings concerning the older children’s objections and maturity, and the balancing exercise which followed.

1. Permission to appeal refused. The proposed grounds had no real prospect of displacing Black J’s decision.

2. A child’s young age does not itself foreclose reliance on the child-objections provision in Article 13 of the Hague Convention. International thinking has developed towards hearing younger children. Article 13 is sufficiently flexible to accommodate that development. The observation in In re D [2006] UKHL 51 that children should be heard more frequently in Convention cases related, in context, to this defence.

3. The phrase “to take account” imposes a fairly low threshold, although the court must consider the child’s age and maturity. A child’s objections need not be so firmly based that they are likely to determine the ensuing evaluative exercise. It was open to Black J to find that both older children crossed that threshold.

4. The evidence supported a finding that the children objected to returning to Ireland, rather than merely preferring life in England or opposing residence with their father. Their ability to distinguish life in Ireland from life with him confirmed their relative maturity. It did not negate their objection to returning to Ireland.

5. When deciding whether an objecting child should nevertheless return, the Convention’s objective of swiftly restoring abducted children is a powerful consideration. It carries particular weight where the child is young. Older children’s objections will ordinarily deserve greater weight than those of younger children. Here that objective was counterbalanced by the family’s nine months of settlement in London and by the father’s delay, despite knowing their whereabouts and having lived with them there for two months.

6. A trial judge need not repeat at the balancing stage matters already addressed elsewhere in the judgment. Complaints about the precise weight attributed to individual factors will succeed only exceptionally, where the weighting is so aberrant that the decision is plainly wrong.

7. Sedley LJ adopted Wilson LJ’s reasons. He added that the ultimate decision is better described as an exercise of judgment than discretion. Its components must be identified, evaluated and balanced so that the decision can be understood and appraised. Appellate restraint is justified because that judgment is best made by the judge who heard the case.

• Court of Appeal (Civil Division): Refused the father permission to appeal and left Black J’s order undisturbed: [2010] EWCA Civ 520.
• High Court, Family Division: Black J refused the father’s application under the Child Abduction and Custody Act 1985 for the children’s immediate return to Ireland. No neutral citation was stated.