Re R (A Child) (Wrongful Retention: Child’s Objections: Discretionary Return)

Under the 1980 Hague Convention, a child’s objection to return is a question of fact. The gateway is satisfied where the child genuinely objects to the proposed return and has attained an age and degree of maturity at which the views should be taken into account. The objection need not be a refusal to comply with an order and must not be subjected to additional glosses.

Once the gateway is crossed, the return decision involves a discretion at large. The court must weigh the child’s objections, their authenticity and strength, welfare considerations, and the Convention’s policy favouring prompt return. A parent’s refusal to take reasonable steps to mitigate an asserted grave risk may be relevant when assessing whether the risk is established.

R, aged 13½, was habitually resident in Portugal and lived there with his father. He travelled to England with his mother for the 2022 summer holiday but was retained there instead of returning to Portugal. The mother accepted wrongful retention under Article 3 of the 1980 Hague Convention and relied on the grave-risk and child’s-objections exceptions in Article 13.

The evidence concerned R’s objections to returning, his experience of bullying, his relationship with each parent, his education, and the practical consequences of remaining in England. The central issues were whether the Article 13 exceptions were established and, if R’s objections opened the gateway, how the discretion should be exercised.

1. Article 13(b). The mother had the burden of establishing a grave risk. The court could confidently discount the possibility that return would expose R to physical or psychological harm or place him in an intolerable situation. R had positive relationships with his father, step-mother and brother; the evidence did not establish that he could not discuss bullying or his sexuality with his father; and the bullying had been less significant recently. The Article 13(b) exception therefore failed.
2. Where a parent asserts that return creates an Article 13(b) risk while refusing reasonable steps to mitigate it, the court may take that stance into account when evaluating whether the exception is established. That factor was additional and was not necessary to the conclusion in this case.
3. Child’s objections. R’s views amounted to an objection to returning to Portugal in the circumstances proposed. A hypothetical return to Lisbon with his mother was unavailable because she would not contemplate returning, and a return to Lisbon with his father was not an option. R’s objection went beyond a preference to live with his mother in England. His willingness to comply with an order did not negate the objection.
4. R had attained an age and degree of maturity at which it was appropriate to take account of his views. His views were authentically his own, although influenced to some degree by his mother.
5. Discretion. The discretion was at large and the Convention policy favouring prompt return carried significant weight. R’s objections also carried substantial weight, but were tempered by his idealised view of life in England, the absence of schooling and friends there, the risk to his education, and his continuing family and social connections in Portugal. The balance favoured return.
6. Any decision to relocate R permanently to England should follow a full welfare investigation. Portugal was better placed to conduct that assessment. R was to return soon, with arrangements and undertakings concerning parental contact and non-denigration.

First-instance decision of the High Court (Family Division) on an application under the 1980 Hague Convention. No appeal is stated.