P v O

Under the 1980 Hague Convention, a child’s objection first requires a straightforward assessment of whether the child objects to return and has sufficient age and maturity for the views to be taken into account. If those gateway requirements are met, the court’s discretion is at large. The child’s views are important but are not determinative.

In exercising the discretion, the court must weigh the nature and authenticity of the objections, welfare considerations, Convention policy, the child’s connections with the State of habitual residence, and the practical consequences of return. Under article 13(1)(b), the opposing party must establish a grave risk of physical or psychological harm or an otherwise intolerable situation. Ordinary housing, financial, educational and lifestyle difficulties will not suffice where the child’s basic needs can be met.

The father sought the summary return of his two daughters, aged 12 and 10, to the Republic of Ireland under the 1980 Hague Convention. The children had been habitually resident in Ireland and were brought to England by their mother without the father’s knowledge or consent on 9 December 2022. The mother accepted habitual residence, wrongful retention and the father’s rights of custody.

She relied on the child-objections exception under article 13 and the grave-risk or intolerability exception under article 13(1)(b). The central issues were whether the children’s objections engaged the court’s discretion, how that discretion should be exercised, and whether return would expose them to a grave risk of harm or an intolerable situation.

1. Child objections. The children clearly objected to returning to Ireland and had sufficient age and maturity for their views to be taken into account. The gateway assessment should remain straightforward and avoid technical sub-tests.
2. Once the gateway requirements were met, the discretion was at large. Relevant considerations included the children’s ages and maturity, the strength, content and authenticity of their views, possible parental influence, welfare factors, family connections, education, contact, enforcement, the forum best placed to determine welfare, and Convention considerations.
3. The children’s objections were genuine but not at the extremely strong end of the spectrum. Their views were materially aligned with their mother’s wishes, and they had been enlisted in the deception used to remove them. Ireland remained their home country, the Irish court was better placed to determine welfare, and their short period in England did not outweigh their longstanding Irish connections. Convention considerations were relevant but not determinative. The factors favouring return heavily outweighed those against it.
4. Article 13(1)(b). The mother did not establish a grave risk of physical or psychological harm or an otherwise intolerable situation. Temporary or cramped accommodation, financial difficulty, possible prosecution, lack of legal funding, educational disruption and separation from the mother’s partner did not satisfy the threshold. The children’s basic needs could be met in Ireland, and the court was entitled to rely on the mutual trust between the two legal systems.
5. Because the article 13(1)(b) threshold was not met, it was unnecessary to consider protective measures. The children were ordered to return forthwith, with the return delayed until immediately after the end of the school year. The precise date was to be agreed, or determined by the court if necessary.

Not stated in the judgment. This was a final hearing at first instance.