C (1980 Hague Convention: Child Objections), Re

Under Article 13 of the 1980 Hague Convention, the child-objections exception involves a gateway stage and, only if that gateway is crossed, a discretionary stage.

The gateway requires a straightforward assessment of whether the child objects to returning to the country of habitual residence and has attained sufficient age and maturity for the court to take account of the objection. A preference for remaining with the abducting parent or in more attractive circumstances is not necessarily an objection.

An established objection is neither determinative nor presumptively decisive. The court must evaluate its strength, authenticity, maturity, possible influence, welfare implications and the Convention’s purposes. The factors are assessed cumulatively.

The father sought the summary return of his nine-year-old daughter to Romania under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention. The child had been brought to England by her mother, who accepted that Romania was the child’s habitual residence and that the father had rights of custody which he was exercising.

The mother abandoned reliance on consent and grave-risk defences. The sole issue was whether the child objected to returning to Romania, whether she had sufficient age and maturity for her views to be taken into account, and whether the court should exercise its discretion against return if the gateway was established.

1. Gateway. The court applied the two-stage approach in Re M (Republic of Ireland: Child’s Objections) [2015] EWCA Civ 26. The gateway involved two factual questions: whether C objected to returning to Romania and whether she had attained an age and degree of maturity at which it was appropriate to take account of her views. The inquiry was to remain straightforward and free from unnecessary sub-tests.
2. Although the judge was not entirely convinced that C had expressed an objection possessing sufficient strength, rationality and conviction, he proceeded on the fine balance that she did object. He also accepted, again on the balance, that her age and maturity justified taking the objection into account. Her views were nevertheless one-dimensional and lacked critical reflection.
3. Discretion. The objection did not determine the application. Applying the guidance in Re M (Abduction: Zimbabwe) [2007] UKHL 55, the judge considered the nature and strength of the objection, its authenticity, the possible influence of the mother, its relationship to welfare considerations, the child’s family relationships, disruption, the parties’ agreement that Romania should determine welfare issues, and the Convention’s objective of securing prompt return. He also applied the approach in Re W (Abduction: Child’s Objections) [2010] EWCA Civ 520 concerning objections by younger children.
4. Taken cumulatively, the factors did not establish a basis for refusing return. C’s objection was weak, closely connected with her preference for life in England, and affected by her limited capacity to assess her relationship with her father. The Romanian courts were the appropriate forum for determining her long-term welfare arrangements.
5. The court ordered C’s return to Romania within 28 days, subject to protective measures and undertakings by the father. The order did not determine whether C would ultimately live permanently in England.