TP (A Child), Re

On an application for summary return under the Hague Child Abduction Convention, the court must first decide whether a Convention exception is established. If the child objects, the gateway inquiry is straightforward: the court asks whether the child objects to return and has sufficient age and maturity for those views to be considered. Under Article 13(b), the opposing party must prove a grave future risk of harm or an intolerable situation. If a gateway is established, the court retains a discretion, in which the child’s authentic and strongly held objections, their relationship to the child’s experience, protective arrangements, welfare considerations and Convention policy are relevant. A return may be refused where the child’s objections carry decisive weight, even though the courts of the State of habitual residence retain jurisdiction.

The mother applied under the Hague Child Abduction Convention for the summary return of her 11-year-old son, T, to France after the father brought him to England. The father opposed the application under Article 13(b), relying on alleged psychological harm, neglect and an intolerable situation, and under Article 13(2), relying on T’s objections to return.

T was joined as a party and represented by a Guardian. French social services and the Bergerac Juvenile Court were investigating allegations concerning the mother’s alcohol use, mental health and treatment of the children. The central issues were whether the Article 13(b) and Article 13(2) gateways were established and, if so, whether the court should exercise its discretion to order or refuse T’s return.

1. Article 13(b). The father established the grave-risk gateway. The evidence disclosed a strong prima facie case that the mother had a long-term drink problem which had seriously affected her behaviour and the children. The court could not make definitive findings on the allegations, but considered it unrealistic for T to return to the mother’s full-time care, whether under the proposed undertakings or otherwise.
2. The father could not realistically return to France to care for T pending the French proceedings. The mother’s proposed undertakings, the involvement of the French authorities and the possibility of protective measures did not provide arrangements capable of carrying decisive weight. Once a grave risk of harm or an intolerable situation is established, refusal of return is almost inevitable. The application was therefore refused under Article 13(b).
3. Child’s objections. Applying Re M (Republic of Ireland) (Child’s objections) [2015] EWCA (Civ) 26, the court treated the gateway as requiring a straightforward examination of whether T objected to return and had attained an appropriate age and degree of maturity. T’s objections were clear, strongly held, rational, authentic and rooted in his experience of family life in France. There was no evidence that they were produced by the father’s influence.
4. In exercising the resulting discretion, the court considered the strength and authenticity of the objections, their relationship to welfare considerations, the possibility of protective arrangements and the Convention’s policy. Although the abduction was blatant and T had strong connections with France, the strength of his objections and their foundation in his own experience were decisive.
5. The application for summary return was refused. The French court retained jurisdiction under Article 10 of Brussels II Revised, and could later order T’s return under Article 11(6) to (8). Those provisions did not influence the decision to refuse summary return, but the father was required to engage with the French proceedings.

First-instance decision. No appellate history is stated in the judgment.