AVH v SI & Anor (By Judith Bennett-Hernandez As Her Guardian)

In a Hague Convention return application, a child’s objection is a gateway issue. The court must ask whether the child objects to return, whether she has sufficient age and maturity for her views to be taken into account, and, if so, how discretion should be exercised. An objection must be directed to return to the state of habitual residence, although the objection and the child’s preference to remain with the abducting parent may be closely linked. The threshold for taking account of objections is comparatively low; the views need not be determinative. Once the discretion arises, the court must balance the child’s authentic views, welfare and circumstances against the Convention’s return policy. The child’s welfare and objections are important, but the return policy is not automatically dominant.

The mother applied for the summary return of her 15-year-old daughter to Mexico under the Child Abduction and Custody Act 1985, the Hague Convention and Article 11 of Council Regulation (EC) 2201/2003. The child had been habitually resident in Mexico and had been brought to England by her father without the mother’s consent. The removal was wrongful and the Article 12 return obligation was engaged.

The child objected to returning, principally because she considered that her education and future prospects would be better in England. The issue was whether her objections crossed the Convention threshold, whether she was of sufficient age and maturity for them to be taken into account, and how the resulting discretion should be exercised.

1. Wrongful removal and gateway. The child was habitually resident in Mexico, the mother was exercising rights of custody, and the father had facilitated her clandestine removal and retained her in England without consent. The court therefore had to order her return forthwith under Article 12 of the Hague Convention unless an Article 13 exception applied.
2. Objection and maturity. The child’s objection was to returning to Mexico, not merely to living with the mother. Although aspects of her reasoning were impulsive and her assessment of educational conditions was imperfect, her wish to be educated principally in English, in a system she regarded as offering better opportunities, had sufficient strength, conviction and rationality to amount to an objection. At 15, and on the evidence of her intelligence, articulation and emotional maturity, it was appropriate to take account of her views.
3. Discretion. The court adopted the guidance in Re M (Abduction: Zimbabwe), including that the discretion is wide; Convention policy is relevant but not dominant; and the child’s rights, welfare, objections, authenticity and the strength of the reasons must be considered. The court also applied the distinction between objections and wishes and feelings, and treated the threshold for taking account of objections as low.
4. Balancing factors. The child had no school place in England, little meaningful educational planning had occurred, she would lose an academic year, suitable bilingual education was available in Mexico, and her father’s home was fragile following the breakdown in their relationship. These considerations outweighed her objections at that stage. Her return was directed, while leaving open a carefully planned future move to England.