WF v RJ & Anor

In Hague Convention proceedings, the child-objections exception has a relatively low threshold. The court must decide whether the child objects to an immediate return and has sufficient age and maturity for the views to be considered. If the gateway is crossed, the discretion is exercised in the round, without any additional requirement of exceptional circumstances.

The nature and strength of the objections, their authenticity, parental influence, welfare considerations and Convention policy may all be weighed. A sibling’s return alone may create a grave risk of harm or an intolerable situation under Article 13(b), particularly where the siblings have a close and enduring relationship. Adequate protective arrangements may prevent an Article 13(b) defence, but do not necessarily determine the discretion arising from objections.

The father sought the summary return to Germany of two children, aged 13 and 12, after their wrongful removal by their mother. The mother resisted return on several Convention grounds. The elder child, B, was separately represented and objected to returning. The younger child, R, had ADHD and communication difficulties and expressed opposition to return, although his views were less definite.

The court considered the children’s objections, the alleged domestic violence in Germany, the possible separation of the siblings, Article 13(b) of the Hague Convention, and the interaction with Brussels II Revised. The central questions were whether each child objected, whether it was appropriate to take account of the objection, whether return would create a grave risk or intolerable situation, and how any resulting discretion should be exercised.

1. Children’s objections. The court applied the three-stage approach identified in Re M (Abduction: Child’s Objections) [2007] EWCA Civ 260: whether the child objects to an immediate return, whether the child has sufficient age and maturity for the objection to be considered, and how the discretion should be exercised. The threshold for taking account of objections is fairly low. Questions at the gateway are primarily matters of fact for the trial judge.
2. Discretion. Following Re M (Abduction: Zimbabwe) [2007] UKHL 55, the court rejected any requirement of exceptionality. The discretion is at large and must be exercised in the round. Relevant considerations include the nature and strength of the objection, its authenticity, parental influence, welfare considerations and the general policy of the Convention.
3. Article 13(b). The court accepted that adequate arrangements could be made in Germany to protect the children from the alleged domestic violence. Article 11(4) of Brussels II Revised therefore prevented Article 13(b) from succeeding on that aspect. However, returning R without B, his mother and A would place him in an intolerable situation. The sibling relationship and the children’s shared experiences made separation at the summary-return stage unacceptable.
4. Application and order. B had a clear, strong, mature and authentic objection. R had a less clear but genuine objection and sufficient maturity for his views to be considered. Taking the children’s positions together, and exercising the discretion in the round, the court refused the father’s application for summary return. The German court retained jurisdiction under Brussels II Revised, and any later return order made by that court would require enforcement under Article 11(8).