C (A Child) (Abduction: Grave Risk: Asylum Claim: Child’s objections), Re

Under the 1980 Hague Convention, a return should ordinarily be ordered following a wrongful removal or retention unless an Article 13 exception is established. The grave-risk exception has a high threshold and focuses on the child’s situation on return. Where disputed allegations could establish a grave risk, the court must consider protective measures, but may confidently discount the possibility of risk where the evidence permits that conclusion. A child’s objection is a question of fact and may concern the practical reality of return, including placement with a particular carer. If the child objects and has sufficient age and maturity, the court retains a broad discretion. Convention policy, welfare, authenticity and strength of the objections, parental influence, delay and the consequences of return are relevant. Protective undertakings may justify ordering return where they provide a sufficiently safe and welfare-compatible transition.

The father applied under the 1980 Hague Convention for the summary return of C, aged 10, to Ohio. The mother had taken C to England ostensibly for a holiday and accepted that his retention was wrongful. She resisted return under Article 13(b), alleging a grave risk of physical or psychological harm, and under Article 13(2), relying on C’s objections.

The mother and C had made asylum claims in the United Kingdom, both of which had been refused, subject to the mother’s appeal. The Ohio Family Court had subsequently found the mother in contempt and determined that C’s best interests required a change of custody in favour of the father. The central issues were whether either Article 13 exception was established and, if the child-objections exception applied, how the return discretion should be exercised.

1. Wrongful removal and obligation to return. C had been wrongfully removed within Article 3. Article 12 therefore required his prompt return, subject to Article 13. The burden of establishing an exception lay on the mother.
2. Grave risk. Article 13(b) was not established. This was a case in which the court could confidently discount the possibility of an Article 13(b) risk. Significant weight was placed on the two hearings in the Ohio Family Court, including its reasoned welfare decision placing C with his father, and on evidence that C had been subjected to harmful influence by the mother. Even without protective measures, a difficult return or separation from the mother would not amount to an intolerable situation. The difficulties would be relatively short term and comparable to those arising when residence is transferred to remove a child from alienating behaviour.
3. Child’s objections. C did object to being returned. In the practical circumstances, return to the United States was closely connected with a likely return to the father’s care and possible separation from the mother. At 10, C was above the threshold at which his views should be taken into account, although his maturity was that of a younger child and his views had been significantly influenced by the mother.
4. Discretion. The discretion under Article 13(2) was exercised in favour of return. Convention policy carried significant weight because the mother had procured consent by deception and relocated C in breach of an agreement and court order. The father’s delay reduced that weight only slightly. C’s objections carried relatively little weight because of his age, limited maturity, harmful influence and inconsistency with his welfare. His welfare favoured restoration of relationships with his father and paternal relatives and avoided an English welfare determination inconsistent with the Ohio decision.
5. Protective measures. Return was ordered on the basis of the father’s undertakings, incorporated into the order. They were highly likely to prevent the mother’s arrest or imprisonment and to avoid C’s immediate separation from her. Requiring a prior Ohio order would reduce already low risks but cause substantial delay, which would not be in C’s interests. The father was required to lodge the order with the Ohio Family Court and the relevant police force.