ZM v NM

In a Hague Convention child-abduction application, an objection under article 13 requires a three-stage assessment: whether the child objects, whether the child has sufficient age and maturity, and whether the court should exercise its discretion to refuse return. An objection is distinct from a preference. A return may be refused under article 13(b) only where the evidence establishes a grave risk of physical or psychological harm, or an intolerable situation. Adequate protective arrangements may remove that defence under article 11(4) of Council Regulation (EC) No 2201/2003. The court must give proper weight to the Convention’s policy of prompt return, particularly where removal was deliberate, while considering the children’s welfare-related circumstances and objections.

The Father applied for the summary return of his twin children to Croatia under the Hague Convention and Council Regulation (EC) No 2201/2003. The children had been habitually resident in Croatia and had been brought to England by the Mother in August 2019 without the Father’s consent.

The Mother relied on article 13, contending that the children objected to returning and that return would expose them to grave psychological harm or an intolerable situation, particularly if she remained in England. The central issues were whether the children had eligible objections, whether the article 13(b) exception was established, and how the court should exercise its discretion.

1. Children’s objections. The court adopted the three-stage approach: determine whether the children objected to returning; determine whether they possessed sufficient age and maturity; and, if so, decide whether to exercise the discretion to refuse return. An objection required evidence of active opposition to living in Croatia, rather than merely a preference for England. The children’s equivocal views just crossed the threshold, and their age and maturity made it appropriate to take them into account. Their objections nevertheless carried limited weight because they had positive views of Croatia and their evidence was marginal.
2. Article 13(b). The Mother had to establish a grave risk of physical or psychological harm, or an intolerable situation, assessed prospectively on the circumstances the children would face on return. Distress caused by separation from the Mother did not reach the required threshold. The evidence did not establish a grave risk of psychological harm.
3. Protective arrangements. Where adequate arrangements secure the children’s protection after return, article 11(4) of Council Regulation (EC) No 2201/2003 prevents reliance on article 13(b). The Father’s undertakings concerning criminal prosecution, contact, non-harassment and maintenance were adequate if the Mother returned. Further undertakings concerning the children’s relationship with the Mother were adequate if she remained in England. The allegations of domestic abuse did not alter that conclusion.
4. Discretion and outcome. The Convention’s policy of prompt return carried substantial weight, especially because the removal was calculated and deliberate. The children’s best interests as between Croatia and England, and the longer-term care arrangements, were matters for the Croatian courts. The court declined to exercise its discretion to refuse return and ordered the children’s return forthwith to Croatia under article 12.

Not stated in the judgment. This was a first-instance application in the High Court (Family Division).