AB (The Child Abduction and Custody Act 1985), Re

In proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, satisfaction of the child-objections gateway gives the court a broad discretion; it does not make the child’s views determinative. The court should assess the nature and strength of the objections, their authenticity, the child’s age and maturity, their relationship to welfare considerations, and the general purposes of the Convention.

A grave-risk defence under Article 13(b) requires harm of the necessary seriousness. Difficulties in the child’s relationships, schooling, autonomy and emotional response to a return may be relevant, but will not necessarily reach that threshold, even cumulatively.

The father applied for the summary return of his 14½-year-old daughter to the Netherlands under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The parties agreed that she was habitually resident there, that the father was exercising rights of custody, and that her retention in England was wrongful under Article 3.

The mother relied principally on the Article 13 child-objections defence and, alternatively, Article 13(b), alleging grave psychological harm or an intolerable situation. The father accepted that the child-objections gateway was met but invited the court to exercise its discretion to order return. The mother also sought to join the child as a party; that application was refused.

1. The application to join AB as a party was refused. Under FPR 2010, rule 16.2, the question was whether joinder was in her best interests. In the usual case, a Cafcass High Court Team report sufficiently conveys the child’s wishes and feelings. AB’s wishes were clearly before the court, but her emotional vulnerability, previous involvement in litigation, the risk that party status would increase her sense of responsibility, and the resulting delay outweighed the potential advantages of joinder.

2. The Article 13 child-objections gateway was satisfied. The court nevertheless retained a broad discretion to order return. Relevant considerations included the nature and strength of AB’s objections, whether they were authentically her own or influenced by the mother, their relationship to welfare considerations, AB’s age and maturity, and the general policy of prompt return under the Convention.

3. AB’s objections were consistently and forcefully expressed, and her age ordinarily meant that they carried significant weight. However, the court was not satisfied that the objection was entirely authentic. Earlier findings concerning the mother, the similarity between AB’s current narrative and earlier concerns, and the circumstances in which AB was repeatedly interviewed indicated possible case-building and influence. The court also considered that remaining in England risked emotional harm and damage to AB’s relationship with her father.

4. The Article 13(b) defence was not established. The court took AB’s allegations at their highest and considered the proposed protective measures, including the resumption of therapeutic support in the Netherlands. The tensions at home and school, the alleged frightening incidents, the impact on AB’s autonomy, and the likely distress of a forced return did not, cumulatively, amount to harm of the gravity required by Article 13(b) or place AB in an intolerable situation.

5. A return order was made, to take effect by midnight on 13 December 2024 if not before. The judge directed that a letter explaining the decision be prepared for AB, permitted disclosure of the judgment and Cafcass report for therapeutic purposes and Dutch proceedings, and declined to regulate telephone contact or discourage any attempt by AB to obtain legal representation.

First-instance decision. No earlier appellate decision is stated in the judgment.