C v V

In Hague Convention return proceedings, the child-objections defence has two stages. The court must first determine robustly whether the child objects to return and has sufficient age and maturity for the views to be taken into account. It must then exercise a discretion in which the child’s objections are one factor, without being determinative or presumptively decisive.

Age and maturity remain relevant at the discretionary stage. The court must examine whether objections are authentically held or influenced, and must consider the protective measures available on return. Article 13(b) is narrowly confined, but the court must assess the future situation in light of enforceable protective arrangements. Where those arrangements adequately address the alleged risk, return may be ordered so that welfare issues can be determined by the courts of habitual residence.

The mother, living in Spain, applied under the Hague Convention for the return of her two sons, aged 14 and 11 at the commencement of proceedings, after their father retained them in England following holiday contact.

The children were joined and separately represented. They objected to returning, principally because of alleged treatment by their stepfather and their preference for life with their father in England. The father and children relied on the child-objections defence and Article 13(b). The mother disputed the allegations and proposed undertakings and alternative care arrangements in Spain.

The central issues were whether the children’s objections passed the Article 12 gateway, how much weight they should receive, whether return created a grave risk of harm or an intolerable situation, and whether protective measures addressed any such risk.

1. Child objections. The burden rested on those advancing the defences. Applying Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26, the gateway stage required a straightforward and robust examination of whether each child objected to return and had sufficient age and maturity for the court to take account of the views. Both boys satisfied that gateway. The court did not need to decide at that stage whether the objections were to a person or to Spain.
2. At the discretionary stage, the views were a starting point which could not be ignored, but they were neither determinative nor presumptively decisive. The court considered age, maturity, the strength and authenticity of the objections, possible parental influence, Convention policy, welfare considerations and the practical arrangements on return. The older child’s views required consideration because of his age, but neither child could be assumed to be free from influence.
3. The court was unable to conclude that either child’s views was wholly authentic. The timing and planning of the retention, the father’s role, the boys’ changing accounts and the failure to engage with proposed protective arrangements suggested adult influence. The allegations nevertheless had to be treated as true when assessing Article 13(b) protective measures.
4. Article 13(b). Applying Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, the defence was narrowly confined and required a grave risk of physical or psychological harm or an intolerable situation. The court had to assess the future situation on return, including the protective measures available. Enforceable undertakings, separation of the mother and stepfather, possible care by relatives or a family friend, and access to the Spanish courts adequately addressed the asserted risks.
5. Return was also consistent with Convention policy. Spain was the children’s country of habitual residence, and the factual and welfare issues were best determined there. Both children were ordered to return to Spain, with the father if possible and otherwise through the identified alternative arrangements.

This was a first-instance decision in Hague Convention return proceedings. No prior appellate decision is stated in the judgment.