LS v AS

In Hague Convention proceedings, the court’s discretion after an exception to summary return is engaged is broad. Convention policy, international comity and the child’s welfare must be considered together; no single consideration automatically prevails. A child’s objections may carry substantial or determinative weight where they are genuine, rational and strongly held, particularly in light of age and maturity. Exposure to domestic violence between parents may constitute psychological harm or place a child in an intolerable situation for the purposes of Article 13(b). The court must assess whether protective measures on return would sufficiently reduce the risk. Where established domestic violence, ineffective protection and cogent objections combine, they may outweigh the objectives of swift return.

The father sought the summary return of three children from the United Kingdom to Hungary under the Hague Convention. The children had been habitually resident in Hungary and had lived in the United Kingdom for approximately five and a half months. The mother relied on Article 13(b), alleging grave risk of harm arising from a long history of domestic violence, and on the children’s objections to return. The court considered the children’s views, the evidence of violence, the effectiveness of protective measures in Hungary, and the Convention’s policy objectives.

1. Discretion. Once an exception to return is established, the court’s discretion is at large within the Convention framework. The policy of swift return, international comity and deterrence must be weighed with the individual children’s interests. No Convention policy consideration automatically has priority.
2. Grave risk. Applying Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, the court held that the children faced a grave risk of primarily emotional, but also physical, harm if returned. Domestic violence between parents may expose children to psychologically harmful effects. The adequacy of protective measures is central, and the history showed that measures previously sought in Hungary had been ineffective.
3. Children’s objections. The relevant assessment concerned conviction, rationality and strength. The objections of the fifteen-year-old child required substantial weight because of her maturity and autonomy. The younger child had independently expressed rational and strongly held objections. Those objections were not automatically determinative, but they were closely connected with the abusive home environment and the risks identified.
4. The guidance in Re M (Abduction: Zimbabwe) [2007] 1 UKHL 551 was applied. The children’s interests could outweigh general Convention considerations, especially where the case had moved away from the speedy-return paradigm. The court also relied on the domestic-violence analysis in Re L, Re V, Re M, Re H [2000] 2 FLR 334, including the need to give increased weight to children’s wishes formed through memories of domestic violence.
5. The father’s application for summary return was declined.