Z v Y

In a Hague Convention return application, a child’s objection must be assessed in three stages: whether there is an objection, whether the child has sufficient age and maturity for it to be taken into account, and whether discretion should nevertheless be exercised to order return. The threshold for taking account of an objection is low, but the court must evaluate its cogency, rationality, consistency, reality and possible parental influence. Article 13(b) is applied restrictively. The burden lies on the opposing parent, and the risk must be grave; the court assesses the child’s likely situation on return, including effective protective measures. Emotional distress caused by overriding an objection, financial difficulty and the prospect of repairing a relationship will not by themselves establish grave risk or an intolerable situation.

A 13-year-old child was brought from X to England by her mother after the parents’ separation. The father, remaining in X, sought the child’s return under the Hague Convention. The mother relied on the child’s objections and Article 13(b), alleging grave risk of harm or an intolerable situation. She also sought financial and protective undertakings.

The court heard evidence from a Cafcass officer and met the child directly. The central issues were whether the child objected to return, whether her age and maturity made it appropriate to take account of those objections, whether Article 13(b) was established, and how the court should exercise its discretion.

1. Child’s objections. The court accepted that the child objected to return and had sufficient age and maturity for her views to be taken into account. The Article 13(2) inquiry involved identifying an objection, assessing age and maturity, and exercising the resulting discretion. Taking account of an objection was a low threshold and did not make the objection determinative.
2. The court evaluated the objections by examining their consistency, cogency, rationality and congruence with established facts. It considered the child’s stated reasons, the extent of adult influence, her relationship with each parent, her schooling and the likely effect of return. The child’s emotional presentation did not make otherwise flimsy or unsupported reasons objectively cogent. The court distinguished genuine objection from wishes and feelings, and found that the child’s objections were substantially influenced by the mother and were not rationally grounded.
3. The court treated the child’s direct meeting with the judge as hearing her representations, rather than receiving evidence. It was permissible to ask her to expand and explain what she had said, without cross-examining her.
4. Article 13(b). The burden was on the mother. The defence required a grave risk, with “grave” qualifying the risk rather than the harm, or a situation which this particular child could not reasonably be expected to tolerate. The assessment was directed to the child’s situation immediately or fairly soon after return, including the protective measures available. The court had to consider the proposed financial, accommodation and other arrangements, but was not required to conduct a welfare investigation.
5. The mother failed to establish grave risk or intolerability. The proposed arrangements were not lavish but were adequate, and the evidence did not demonstrate more than short-term emotional distress. The possibility that return might assist the child’s relationship with her father was relevant to the overall decision but could not itself constitute an Article 13(b) defence.
6. Even if Article 13(b) had been established, the court would have ordered return. Return was in the child’s interests, including return to her home, environment and school and the possibility of restoring her relationship with her father. The court ordered return and declined to suspend that order to allow a leave-to-remove application in England.