E (Child Abduction: Child's Objections)

Under the Hague Convention, a child’s objection requires a two-stage gateway inquiry: whether the child objects to return in Convention terms, and whether the child has attained sufficient age and maturity for the objection to be taken into account. If the gateway is satisfied, the court has a discretion whether to order return. The child’s views are important but not determinative.

In exercising that discretion, the court must consider all relevant circumstances, including the situation awaiting the child on return and the purpose of the Convention. Separately, Article 13(b) is established where return would expose the particular child, in the particular circumstances, to a grave risk of physical or psychological harm or an intolerable situation. General undertakings may be inadequate where they do not secure the child’s protection in the circumstances actually likely to arise.

The father applied under the Child Abduction and Custody Act 1985, the Hague Convention and Article 11 of Brussels IIa for the summary return of his ten-year-old daughter, E, to Lanzarote. The mother and child had moved to England from Lanzarote, where the father continued to live.

The mother abandoned objections based on habitual residence and consent. The remaining issues were whether E objected to return and had sufficient age and maturity for her views to be considered, whether return involved a grave risk under Article 13(b), and whether adequate protective arrangements existed under Article 11(4) of Brussels IIa.

1. Application dismissed. E was to remain in England and Wales.
2. The court accepted that the mother was unlikely to return to Lanzarote with E. E was firmly opposed to returning without her mother. Her objection was sufficiently directed to return in Convention terms, and she was of sufficient age and maturity for her views to be taken into account. The gateway under Article 13 was therefore satisfied.
3. Passing the gateway did not determine the outcome. The court retained a discretion whether to order return. It considered the relevant factors identified in TB v JB (Abduction)(Grave Risk of Harm), including the suitability of the forum, the likely outcome of substantive proceedings, the situation awaiting the child, the emotional effect of immediate return and the risk of frustrating the Convention’s purpose.
4. The decisive consideration was the situation awaiting E if returned without her mother. The father’s proposed accommodation and financial support were uncertain. His work commitments meant that he could not realistically provide full-time care while maintaining the necessary income. Separating E from her mother, against her firm objection, would place her in an intolerable situation. The balance therefore favoured refusing return.
5. In the alternative, Article 13(b) was made out. Applying the approach in Re E (Children)(Custody Appeal), an intolerable situation means one which the particular child, in the particular circumstances, should not reasonably be expected to tolerate. Return without the mother, where the father would need to work rather than care for E, created a grave risk of such a situation.
6. The proposed undertakings did not amount to adequate arrangements under Article 11(4) of Brussels IIa. They might have sufficed if the mother returned with E, but not if E returned alone. The application was accordingly dismissed.