B v P (Children's Objections)

Under the 1980 Hague Convention, a child’s objection to return is a factual gateway, distinct from a preference, requiring a straightforward and robust examination. Once the gateway is met, the court has an at-large discretion, balancing the child’s views, welfare and Convention policy. The objection is not determinative.

For Art 13(b), a child’s fixed and immutable subjective fear may be relevant even if independent of the objective truth of the allegations, where return would create a grave risk of psychological harm or an intolerable situation. The assessment is prospective and includes available protective measures. Where the feared harm is tied to the return location itself, protective measures may not adequately mitigate it.

The father applied under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention for the summary return to Hungary of two children, aged 12 and 11, after their mother retained them in England from 4 November 2016. The mother conceded wrongful retention and relied on the child-objection and grave-risk defences under Art 13.

The court considered allegations of domestic abuse, the children’s autism, expert psychological evidence, their expressed objections and available protective measures in Hungary. The central questions were whether the objections gateway was satisfied, whether the resulting discretion should be exercised against return, and whether return would create a grave risk of psychological harm or an intolerable situation.

1. Disposition. The father’s application for summary return was dismissed. The court held that both the child-objection defence and the Art 13(b) defence were made out, and exercised its discretion not to return the children.
2. Child objections. The court applied the guidance in Re M (Republic of Ireland)(Child’s Objections)(Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074, endorsed in Re F (Child’s Objections) [2015] EWCA Civ 1022. The gateway required a straightforward and fairly robust assessment of whether each child objected to return, rather than merely expressing a preference, and had attained sufficient age and maturity. Both children satisfied that gateway. Their objections gave rise to an at-large discretion, in which the court considered their persistence and authenticity, welfare, the effect of autism, Convention policy and the consequences of return.
3. Grave risk. Applying Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27 and [2012] 1 AC 144, the court assessed the prospective situation on return and considered protective measures. It was unnecessary to conduct a complete fact-finding exercise before assessing the risk. The evidence established both an objective experience of domestic abuse and fixed subjective fears, particularly the child’s belief that return to Hungary would expose the mother to fatal violence.
4. Subjective fear and protection. Relying on Re S (A Child) [2012] UKSC 10, the court held that a fixed and immutable subjective fear may ground Art 13(b), regardless of whether every aspect of the fear is objectively justified. Here, the children regarded Hungary itself as a place of danger. Protective undertakings concerning the father could not adequately ameliorate the resulting grave risk of psychological harm or intolerable situation. Article 11(4) of BIIa was therefore not engaged.
5. Expert evidence. The direction for a child-psychology report was necessary on the particular facts under s 13 of the Children and Families Act 2014 and FPR r 25.4(3), but expert evidence in Art 13 cases would be required only rarely.