CB v CB

Under Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction 1980, the court must first decide whether the child objects to return, rather than merely preferring one outcome, and whether the child has sufficient age and maturity for those views to be taken into account. If those gateway conditions are met, the court retains a discretion. It must balance the Convention’s purposes with the child’s welfare, including the strength, soundness and validity of the child’s views. A return may be refused where the child’s objections are rational, carry substantial weight and, in the circumstances, welfare considerations justify exercising the discretion against return.

The mother applied under the Hague Convention for the return of her fourteen-year-old son to Australia. The child had travelled there with her with the father’s consent for an initially limited period, but remained there for over two years. During a later visit to England, the father retained him when he was due to return.

The child’s Guardian supported the view that he objected to returning to Australia and was sufficiently mature for his views to be considered. The father and Guardian opposed the application. The central issue was whether the Article 13 objection defence was established and, if so, whether the court should exercise its discretion to refuse return.

1. Article 12 and wrongful retention. The child was habitually resident in Australia when he was due to return, and the mother was exercising rights of custody. His retention in England was therefore wrongful under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980.
2. Article 13 gateway conditions. The court had to distinguish an objection to return from a preference or strong expression of view. It also had to decide whether the child had attained an age and degree of maturity making it appropriate to take account of those views.
3. The child’s evidence, as assessed by the Guardian, was clear, balanced and unaffected by coaching. His objection was to returning to Australia, not to returning to his mother. Given his age and maturity, the court was required to take his views into account. His views were rational and deserved considerable weight, although he could not be expected to appreciate every aspect of the dispute.
4. Discretion. Having established the gateway conditions, the court considered the Convention’s purposes, the child’s welfare, and the strength, soundness and validity of his views, applying the guidance in Re M (Abduction: Zimbabwe) [2007] UKHL 55 and DL v H [2009] EWHC 3074 (Fam). The child’s ties with Australia were not regarded as especially strong. His stay there had originally been intended to last for one year and had been extended uncertainly. The circumstances were more complicated than a straightforward abduction and arose from longstanding parental difficulties.
5. The court exercised its discretion not to order return. The mother’s summons was dismissed. The parties were directed to agree arrangements for the child’s residence and contact; failing agreement, the matter would return before the judge with a Guardian’s report.