Law Report: Abducted child's objection to return is sufficient: Re S (A Minor) - Court of Appeal (Lord Justice Glidewell, Lord Justice Balcombe and Mr Justice Boreham), 7 July 1992

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In order to establish, pursuant to article 13 of the Hague Convention on the Civil Aspects of International Child Abduction 1980, that a child objected to its immediate return to the country whence it was abducted, it was not necessary to show a grave risk that the child's return would expose it to psychological harm or place it in an intolerable situation.

The Court of Appeal dismissed the father's appeal against the refusal of Mr Justice Ewbank, on 15 January 1992, to order the immediate return of his daughter to France, whence she had been abducted by the mother.

The father was French and the mother English. The father was a petroleum engineer whose work took him to many parts of the world.

They met in Indonesia, married in England, and had since lived in Borneo, France and Norway before returning to live in Paris in 1991.

The child, born in 1982 in England, had attended schools in Norway and France. Despite psychological and learning problems, including speech difficulties and minor dyslexia, she had a high IQ and a mental age of 12.

On 7 November 1991, the parents signed a voluntary deed of separation, under which the mother and child would live in a flat in Paris, while the father would live in a house just outside Paris, with unrestricted access to the child, and would provide financial maintenance for the mother and child.

On 24 November 1991, the mother having run out of money and the father having refused to give her more, the mother sold her rings for pounds 250 and came with the child to live in England.

The father applied for the child's return under the Child Abduction and Custody Act 1985, which incorporated the provisions of the Hague Convention into UK law.

Patricia Scotland QC and Henry Setright (Margaret Bennett & Co) for the father; Allan Levy QC and Brian Jubb (Moore & Blatch) for the mother.

LORD JUSTICE BALCOMBE, giving the judgment of the court, said it was common ground that the mother's removal of the child was wrongful under article 3 of the convention, and that, prima facie, the court was bound to order the child's immediate return to France under article 12.

However, by article 13 of the convention, a court 'is not bound to order the return of the child if the person (who) opposes its return establishes that . . . (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

'The (court) may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views . . .'

The mother's case was that the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her views.

The child had been interviewed by the court welfare officer, who gave evidence before the judge. Having heard that evidence, and the evidence of both parents, the judge concluded that the child had formed an intelligent and sensible decision to remain in England and that he should refuse to order the child's immediate return.

In construing article 13, it could first be seen that the part relating to the child's objections to being returned was completely separate from paragraph (b), and there was no reason to interpret that part as importing a requirement to establish a grave risk that the return of the child would expose her to psychological harm or place her in an intolerable situation, as Mr Justice Bracewell had done in Re R (A Minor: Abduction) (1992) 1 FLR 105, at 107.

Second, the return to which the child objected was that which would otherwise be ordered under article 12, viz an immediate return to the country from which it was wrongfully removed, so that that country's courts might resolve the merits of any custody dispute. Nothing in article 13 made it appropriate to consider whether the child objected to returning in any circumstances.

Next, the questions whether (i) the child objected to being returned, and (ii) had attained an age and degree of maturity at which it was appropriate to take account of its views, were questions of fact peculiarly within the province of the trial judge.

It would usually be necessary for the judge to find out why the child objected to being returned: if the only reason was to stay with the abducting parent, who was also unwilling to return, then that wouldbe a highly relevant factor to the exercise of discretion.

Article 13 did not seek to lay down any age below which a child was considered as not having attained sufficient maturity for its views to be taken into account. Nor should their Lordships.

On the question of discretion, the scheme of the Hague Convention was that normally it was in the best interests of children to be promptly returned to the country whence they had been wrongfully removed, and only in exceptional cases should the court have a discretion to refuse to order an immediate return.

If the court found the child's views had been influenced by some other person, such as the abducting parent, or that the objection to return was because of a wish to remain with the abducting parent, then little or no weight should be given to those views.

But in this (exceptional) case the child strongly objected to being returned to France for reasons which had substance and were not merely a desire to remain with her mother.

Paul Magrath, Barrister