L (Grave Risk of Harm) (Child's Objections)

Under Article 13 of the Hague Convention, the grave-risk exception requires a serious risk of harm or an intolerable situation. The assessment must address the situation on return, including protective measures available in the state of habitual residence.

A child’s objection is a factual question with a relatively low threshold. The court should consider the child’s words as a whole and avoid an over-prescriptive approach. Once the gateway is crossed, the discretion is broad. It must balance the strength and authenticity of the objection, the child’s welfare, and Convention policy favouring prompt return. Article 24 of the Charter of Fundamental Rights of the European Union may inform that welfare assessment but adds no separate weight.

The father applied under the Child Abduction and Custody Act 1985, the Hague Convention and Article 11 of Council Regulation (EC) 2201/2003 for the summary return of his seven-year-old son, L, to Bulgaria. L had been habitually resident there and was removed by his mother after the father permitted travel for a holiday.

The mother relied on Article 13(b), alleging risks arising from domestic conflict, further litigation and separation from L’s older brother. She also relied on L’s objections. The central issues were whether either exception was established and, if so, whether the court should exercise its discretion against return.

1. Article 13(b). The mother failed to establish a grave risk of physical or psychological harm or an intolerable situation. The court applied the ordinary civil standard and considered the protective measures available in Bulgaria. Historic allegations, disputed messages and the prospect of further litigation did not establish the required risk. The sibling relationship, although close, was not sufficiently intense to make separation intolerable.
2. Child’s objection. L’s expressed wish to remain in England, assessed in the totality of his conversations with the Cafcass officer and solicitor, amounted to an objection. The inquiry was factual and required no wholesale objection to the country of habitual residence. The threshold was fairly low. L had sufficient age and maturity for his views to be taken into account, despite his relatively limited emotional maturity.
3. Discretion. The discretion after the gateway was crossed was at large. Relevant matters included the strength of the objection, its authenticity and possible parental influence, L’s age and understanding, his relationship with his brother, his welfare, and the policy of prompt return so that welfare decisions could be made in the home country. L’s objection was not particularly strong and was influenced by concern that he would live with his father. The father’s undertaking to await an inter partes hearing before seeking to remove L from the mother moderated that concern.
4. Article 24 of the Charter of Fundamental Rights of the European Union could be considered within the ordinary welfare assessment, but it should not be treated as a separate and additional weight. The right to maintain relationships with both parents was already incorporated into the Convention discretion.
5. The court exercised its discretion to order L’s immediate return to Bulgaria. The father’s application succeeded.

Not stated in the judgment.