Z (A Child) (1980 Hague Convention), Re

In proceedings under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention, a child’s objection to return creates a discretion but does not determine the outcome. The court must assess the nature and strength of the objection, its authenticity, possible parental influence, welfare considerations, and the Convention’s policy of prompt return and international comity.

An Article 13(b) defence requires a structured assessment. The court must consider whether the allegations, taken at their highest, establish a grave risk or intolerable situation and, if so, whether protective measures can sufficiently address that risk. Protective measures available through the authorities of the state of habitual residence may justify return.

The mother sought the summary return of her 13-year-old daughter to the Czech Republic after the father retained her in England following an agreed holiday. The child had lived in the Czech Republic since 2017 and the father accepted that the retention was wrongful.

The father relied on Article 13(b), alleging physical and psychological harm, and on the child-objections exception. He also sought an adjournment so that the child could be joined as a party and separately represented. The court had to decide whether joinder was in the child’s best interests, whether the Article 13 exceptions were established, and whether return should nevertheless be ordered.

1. Separate representation. The application to adjourn and join Z as a party was dismissed. Under Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51 and Re P (Abduction: Child’s Objections) [2020] EWCA Civ 260, party status is rare. Z’s views had been adequately conveyed by the Cafcass officer, and there was no issue of significant difficulty justifying joinder. The delay would be contrary to her interests and inconsistent with the Convention’s requirement of expedition.
2. Article 13(b). The father bore the burden of proving the defence on the balance of probabilities. Applying Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, the court considered the allegations at their highest and then examined how any risk could be addressed. The evidence of abuse was disputed and thin. The court was satisfied that the Czech authorities and proposed protective measures could protect Z, including investigation of the allegations, therapeutic support and further consideration by the Czech courts. The defence was therefore not established.
3. Child’s objections. Applying Re Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490 (Fam), the court found that Z objected to return and had sufficient age and maturity for her views to be taken into account. Her objection was genuine rather than a mere preference, but the discretion was at large. The court considered possible paternal influence, the context of a temporary respite from life in the Czech Republic, Z’s established home and education there, the importance of her sibling relationships, future contact, the Convention’s policy and international comity.
4. The factors favouring return outweighed Z’s objection. A summary return order was made, with return directed by no later than 23:59 on 2 November 2023.