KS v CS

Under the 1980 Convention, a parent may continue to exercise rights of custody while temporarily incapacitated and unable to provide day-to-day care. Unilateral removal in those circumstances may therefore be wrongful.

The Article 13 objection gateway requires a straightforward factual assessment of whether the child objects to return and has sufficient age and maturity for the child’s views to be taken into account. A preference may amount to an objection where the distinction is uncertain. Crossing the gateway creates a discretion at large, not a presumption that return must be refused. The court must weigh the child’s views, their authenticity and strength, welfare considerations, delay and the Convention’s policy objectives.

The applicant sought the summary return of her nearly 15-year-old son to the United States under the 1980 Convention. The respondent father had taken the child from the United States to England while the mother was incapacitated following a serious road accident and had later retained him in England.

The father argued that the mother was not exercising her custody rights at the time of removal. He also relied on the child’s objection to returning. The grave-risk defence was abandoned. The central issues were whether the removal or subsequent retention was wrongful and, if so, whether the child’s views justified refusing return.

1. Wrongful removal. The mother was exercising rights of custody when the child was taken to England. Day-to-day care is not a necessary condition of exercising custody rights, and temporary incapacity does not automatically terminate their exercise. The mother had not abandoned the child or consented to the removal. The removal was therefore wrongful under Article 3 of the 1980 Convention. The court would alternatively have found wrongful retention when the child was not returned for the new school term.
2. Article 13 objection gateway. The child was nearly 15, intelligent and articulate, and had sufficient age and maturity for his views to be considered. Although his evidence more closely resembled a preference to remain with his father than a refusal to return, the distinction was uncertain. The court treated his reasoned wish to remain in England as an objection, adopting the guidance in Re M (Republic of Ireland) and Re F (Child’s Objections).
3. Discretion. The objection was not determinative. The discretion under Article 13 was at large. Relevant matters included the nature and authenticity of the child’s views, the father’s influence, the child’s welfare, the passage of time, the disruption caused by the removal, the prospect of repairing the mother-child relationship, and the Convention’s policy objectives. The delay reduced the weight of the prompt-return objective, but did not justify refusal.
4. Outcome. The child had been wrongfully removed, but the court declined to exercise its discretion to refuse return. His relationship with both parents would be better promoted by returning him to the United States, where the courts could determine his long-term welfare. The application for summary return succeeded.