AB v CD

Under the 1980 Hague Convention, a child’s objection to return is a gateway issue. The court must decide whether the child objects to return to the country of habitual residence and has sufficient age and maturity for the objection to be considered. If the gateway is established, the court retains a discretion whether to order return.

That discretion requires consideration of the nature and strength of the objection, its authenticity, its relationship to welfare considerations, and the general Convention objectives. A rational, settled and persistent objection may outweigh those objectives, particularly where forced return would damage the parent-child relationship. Protective measures may be insufficient if they do not address the central concern. A risk of harm does not engage article 13(b) unless it is grave or would create an intolerable situation.

The mother applied under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention for the summary return of her 13-year-old daughter to the United States. The father accepted that the child had been habitually resident there and had been wrongfully retained in England.

He relied on the child-objection defence under article 13 and the grave-risk defence under article 13(b). The child initially said that she would return only to live with her grandparents, but later expressed a settled objection to returning to the United States. The central questions were whether the child objected to return, whether her age and maturity warranted consideration of her views, and how the court should exercise its discretion.

1. Child’s objection. The child objected both to living with her mother and to returning to the United States. Her later email confirmed that this was more than a preference. She was 13 and sufficiently mature for her views to be taken into account.
2. Discretion. Establishing the objection did not determine the application. Applying the guidance in Re C (1980 Hague Convention: Child Objections) [2024] EWHC 1875 (Fam) and Re M (Abduction: Zimbabwe) [2007] UKHL 55, the court considered the nature and strength of the objections, their authenticity, their relationship to welfare considerations, and the general Convention considerations.
3. The objections were strong, persistent and settled, and had developed over several years. They were authentically the child’s own and rationally based on her relationship with her mother and the isolation of her life in the United States. They were not merely the product of a temporary “bubble of respite” or a preference for a holiday parent.
4. The court could not conduct a full welfare inquiry in a summary return application. It could nevertheless take account of the accepted arrangements that the child would live with her grandparents if returned, the contrast with living with her father in England, and the likely damage to the relationship with her mother if she were forcibly returned.
5. The Convention objectives strongly favoured return, but did not necessarily outweigh a child’s objection because article 13 permits the court to refuse return where the relevant conditions are satisfied. The agreed protective measures did not address the central concerns. The court therefore refused summary return in the exercise of its discretion.
6. The article 13(b) defence was not established. Although there was a risk of self-harm and psychological harm to the mother-child relationship, the evidence did not show a grave risk or an intolerable situation, particularly if the child lived with her grandparents.