R v S (Hague Convention: Child's Objections)

At the gateway stage of an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980, the court should conduct a straightforward and robust examination of whether the child objects to return and has attained an age and degree of maturity at which the child’s views should be taken into account. Sub-tests and technicality should be avoided.

If the gateway is crossed, the return decision remains discretionary. The court must weigh the child’s objections, welfare considerations, protective measures and the Convention’s policy favouring prompt return. The discretion is wide and is not determined by the child’s wishes alone.

The father applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the return of two children from England to the Republic of Ireland. The mother accepted that she had wrongfully removed them but relied on the child-objections and Article 13(b) exceptions.

The elder child, aged nine, objected to returning to Ireland because of alleged violence by the father. Cafcass evidence addressed the genuineness of his views, his objections and his maturity. The central issues were whether the gateway requirements were met and, if so, whether the court should exercise its discretion to order return.

1. Gateway requirements. The court was conducting a summary procedure and could not determine the disputed allegations of violence. It nevertheless held that the child objected to return to Ireland and had attained an age and degree of maturity at which it was appropriate to take account of his views. His fears were genuine, strongly held, based on direct experience and not the product of undue influence. Although he found it difficult to separate returning to Ireland from returning to circumstances involving his father, his objection to returning to Ireland remained genuine. ([2015] EWCA Civ 26, para 69, applied.)
2. Discretion. Having crossed the gateway, the court had a wide discretion. It had to give weight to the policy of the Convention, while also considering the child’s objections, welfare considerations and the effectiveness of protective measures. The discretion was not determined by the child’s wishes alone. The approach in Re M and another (Children)(Abduction: Rights of Custody) was applied, including the need to give weight to Convention considerations. ([2007] UKHL 55, para 46.)
3. Application. The proposed protective measures were unlikely to address the fears of the mother or child because they had direct experience of protective measures in Ireland being ineffective. Returning the child would disrupt important therapeutic and welfare support already in place in England, with no information about when equivalent support could begin in Ireland. The mother was unlikely to return, not as a tactic to influence the proceedings, but because of her genuine fear and emotional fragility.
4. Weighing the child’s age and understanding, the strength and rationale of his objections and his emotional vulnerability, the court found strong reasons not to order return. It was unnecessary to determine the Article 13(b) exception. The father’s application for the return of both children was refused, consistently with his position that the children should not be separated.

Not stated in the judgment.