Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return)

Under article 13(b) of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the risk must be grave, but its source is irrelevant. Separation from a parent or sibling can therefore found the exception, although the evidence must satisfy the prescribed threshold.

A mature child’s objection opens a discretion rather than determining the outcome. Its weight depends on its nature, strength and authenticity, its relationship with the child’s welfare, and Convention policy. Under the inherent jurisdiction, welfare remains paramount. A return may nevertheless serve an older child’s welfare where expressed wishes have been substantially affected by chronic parental conflict.

A mother wrongfully removed two siblings, aged 17 and 12, from Poland to England. Both had lived in Poland throughout their lives and were subject to a Polish order that they live with their father.

The father sought the younger child’s summary return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Because the elder child was over 16, his return was sought under the High Court’s inherent jurisdiction. The mother relied on grave risk, intolerability and the younger child’s objections. She also opposed the elder child’s return on welfare grounds and sought his joinder and separate representation.

The principal issues were whether either Convention exception prevented return, how much weight should be given to views affected by chronic parental conflict, whether return served the elder child’s welfare, and whether he should be joined.

1. Both children were to be returned to Poland. The younger child’s return was ordered under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The elder child’s return was ordered under the inherent jurisdiction.
2. The mother had not proved a grave risk of physical or psychological harm arising from the father’s care or the response of the Polish authorities. The medical and other evidence did not support serious neglect. Her criticisms of the Polish authorities fell far short of the compelling evidence required. Nor had she proved that separation from herself, or any possible separation of the siblings, would create grave harm or an intolerable situation. The elder child would probably return with his sister in any event.
3. The younger child was sufficiently mature and her views amounted to an objection rather than a mere preference. The gateway under article 13 was therefore crossed. Her objection was not determinative, however. Its nature and strength, authenticity, relationship to welfare and the Convention’s policy all had to be assessed.
4. The children’s views carried substantially reduced weight. Their complaints were general rather than profound, and neither expressed especially strong feelings. The evidence showed that their views were obscured by long exposure to parental conflict and influence from the mother’s household. Their rejection of their father was also inconsistent with the wider evidence and lacked perspective.
5. Welfare and Convention considerations favoured return. The children would resume familiar schools, friendships, language, culture and relationships with their extended family. The mother’s repeated unilateral actions, the need to deter abduction, the prompt pursuit of the application, comity and the Polish courts’ continuing involvement were weighty factors.
6. The elder child’s welfare was paramount. Despite his age and stated wishes, a summary assessment showed that return was in his best interests. An order would protect him from pressure to remain and allow him to resume a fuller life in Poland. Joinder was refused because separate representation would add little, risk drawing him further into the parental conflict and cause delay.
7. The children could initially stay with their paternal grandparents to ease the transition. They could move to their father’s home if they wished, or remain with the grandparents pending further welfare decisions by the Polish court.

This was a first-instance determination. The judgment records the following prior steps:

• High Court, 29 November 2018: Newton J made a location order without notice.
• High Court, 18 December 2018: Russell J directed that the applications concerning both children proceed, dispensed with a written application concerning the elder child, ordered evidence and a Cafcass report, and made provision for contact.
• Polish courts: a Warsaw appellate court had ordered in 2014 that the children live with their father. Further Polish proceedings concerning their care and the mother’s removal of them remained pending.