ROL v HML (Child abduction and immigration problems)

In a Hague Convention child-abduction case, a child’s objection to return opens a discretion; it does not determine the result. The court must consider the antecedent wrongful removal, the Convention’s objective of prompt return to the state of habitual residence, the nature and strength of the objection, and the circumstances of any other child. A return should not be ordered where the accompanying parent may be unable lawfully to enter or remain in the state of habitual residence. Appropriate financial arrangements may also be required to make return realistic and safe. In this case the hearing was adjourned until the mother’s immigration position and proposed financial provision could be resolved.

The father sought the return of two children to New York after their removal to England on or about 22 September 2017. The mother abandoned the argument that the children had not been habitually resident in New York. The remaining issues were an alleged grave-risk defence under Article 13B of the Hague Convention and, concerning the older child, whether she objected to return.

The judge provisionally accepted that the older child objected to return, but regarded the objection as relatively borderline. Financial uncertainty and the mother’s uncertain immigration status created practical and welfare difficulties. The central issue was whether return should be ordered, and if so on what conditions.

1. Provisional outcome. The hearing was adjourned part-heard to enable the mother to resolve her entitlement to enter and remain in the United States. No return could be ordered unless that position was satisfactorily resolved.
2. Child’s objection. The judge provisionally concluded that the older child, who was nearly thirteen, objected to returning forthwith. The assessment was ultimately for the judge, informed by the child’s maturity, understanding and the expert’s oral evidence. The objection was accepted but treated as relatively borderline rather than entrenched.
3. Exercise of discretion. Once an objection is established, the court retains a discretion whether to order return. In exercising it, the court should consider the antecedent wrongful removal and the Convention’s objectives, including prompt return to the state of habitual residence so that future decisions can be made there. The character and strength of the objection, the position of any sibling, and the children’s welfare are relevant.
4. Practical conditions. The financial arrangements had to be credible and sufficient. The judge provisionally considered that payment of US$15,000 to the mother in advance, together with payment of the school fees, would address the identified financial uncertainty.
5. Immigration status and welfare. It would be intolerable and gravely damaging if the children were admitted to the United States while their mother, with whom they had always lived, was refused admission or could not remain for an appreciable period. Subject to lawful entry and residence, adequate funds, and appropriate arrangements for proceedings in New York, the judge provisionally indicated that he would order the return of both children, notwithstanding the older child’s objection.