Article 13(2) of the Hague Convention
Child Objection Cases
AUSTRIA
Case
6Ob230/11h,
Oberster
Gerichtshof
(Supreme Court)
Facts
Held
The parties had two children, V (14
years old) and C (9 years old). Since
November 2009 the mother and
children had lived in Sicily, Italy. After
the parties separated, the mother
had custody of the children.
Application
dismissed.
The children
were
ordered to
return.
Weight Given
to Child’s
Objection
No weight
Important Statements & Reasoning
The mother argued that the appeal court had misunderstood the evidence
presented. In refusing to return to Italy, V only meant that he didn’t wish to live with
his mother. He did not state that he didn’t wish to return to Italy. The Supreme
Court stated that this was an incorrect evaluation of the evidence submitted.
Child’s Objections
The children went to visit their father
in Austria over the Easter holidays.
They did not return to their mother in
Italy. V expressed a desire to remain
in Austria. The mother petitioned for
their return.
The Court stated that the return of a child may be rejected by a court. A child must
be of an age and maturity where it is appropriate to take into account their view.
The application of this provision should be left to the competent authorities. (The
English translation of the case is difficult to make out, but it appears that the Court
states that the finding that a child is not of an age and maturity for his/her opinion
to be granted weight is a finding of fact that is not reviewable by the Supreme
Court).
The Austrian court of first instance
dismissed the application for the
return of V because he had
expressed a clear desire to remain in
Austria. However, C was unable to
express a clear desire and therefore
the court ordered the children’s
return to Italy.
Risk of Harm/Intolerable Situation
The father claimed that the Court of Appeal had not considered the risks that
returning to the mother in Italy posed to V and C and did not determine whether the
mother had hit the child. The Supreme Court stated that the father failed to
understand that returning the child to his habitual state of residence did not require
that the child had to be returned to the parent residing there, but meant that the
decision should be made by that country’s family court custody process. The aim
of the Convention is to ensure that children are returned to their country of former
habitual residence and that parents have the right to exercise access or any
custody rights that they were guaranteed. The concerns with regard to a “serious
risk of physical or psychological harm” or an “intolerable situation” are related to
returning the child to the country of residence and not simply a concern when
returning the child to the requesting parent. Evidence of the father’s specific
The appeal court upheld the lower
court’s decision. The Court noted
that there was no single Austrian
Supreme Court case on the question
of whether the opinion of minors
should be considered and on the
1
Case
Facts
Held
Weight Given
to Child’s
Objection
issue of whether it was appropriate
to separate two siblings.
9Ob102/03w,
Oberster
Gerichtshof
(Supreme Court of
Austria)
The father was of Turkish nationality
and the mother was an Austrian
citizen. The parties had two children,
a daughter and a son.
The mother took the daughter from
Turkey to Austria in 2002 without the
father’s knowledge. The mother gave
birth to a son while she was in
Austria in 2002.Given that the
daughter was an Austrian national,
the father sought the return of his
daughter to Turkey.
Important Statements & Reasoning
allegations of threats to V and C upon a return to Italy did not exist. The threats
referred to in Article 13(1) are limited to really serious dangers.
The father’s
appeal was
allowed and
the children
were
ordered to
return to
Turkey.
No weight
The mother was in psychotherapy in
Austria and the father was
concerned that the mother would
make poor decisions with the
children.
The mother offered reasons for why
a return should not be ordered. She
said that the daughter was attending
kindergarten, had a lot of friends and
had settled into Austria. She loved
her brother very much. Both children
spoke the German language and
were fully integrated into Austria. The
daughter stated that she wanted to
2
Psychological Harm
The Supreme Court stated there were no exceptional circumstances to this case. A
five year old that had been in the care of her mother for a year (abroad) would
typically be distraught about returning home without the parent. Further, as a side
note, the Court stated that the child’s “unlearning of the Turkish language” was not
an issue as the child could quickly relearn the language. After returning to Turkey,
the child would become acclimatized again.
Case
Facts
Held
Weight Given
to Child’s
Objection
stay with her mother.
The court of first instance dismissed
the return and noted that the 5 year
old daughter had been doing well in
Austria and spoke German. She was
in kindergarten, loved her brother
and did not wish to return to her
father. The mother had fully
integrated into Austria and no longer
intended to return to Turkey. The
mother was assisted by her two
sisters in Austria, both mentally and
with the care of the children. The
court concluded that while the
mother had wrongfully removed the
daughter from Turkey, the return
would cause the child significant
psychological harm as she would be
forced to separate from her brother
and mother. In Turkey, she would
have to interact in a language she
barely understood. The Court
rejected the return on the basis of
Article 13(1)(b).
The Court of appeal upheld the lower
court’s decision. The child would
experience psychological harm if
returned to Turkey.
AUSTRALIA
3
Important Statements & Reasoning
Case
Facts
Held
Richards &
DirectorGeneral,
Department of
Child Safety,
[2007] FamCA
65
The parties were married in the United States in
1991 and separated in 2002. The parties had 2
children, C and S, who were born in the U.S. After
separation, the children were raised in the U.S. in
the primary care of their mother and had regular
contact with their father. Orders were made on
consent that the parties would have joint legal
custody of the children and that the wife would
have physical custody of each of them.
The appeal
was
dismissed.
(Full Court of
the Family
Court of
Australia)
Weight
Given to
Child’s
Objection
Moderate
weight
Important Statements & Reasoning
Grounds of Appeal
The mother argued on appeal that the trial judge had erred for the following
reasons:
- The trial judge held that the principles of the Convention “trump”
consideration in the exercise of discretion unless there is a “clear and
compelling case to the contrary”; and
- The principles of the Convention are one factor to consider and should
not act as establishing onus.
The mother started a relationship with an
Australian. In February 2005, she agreed that the
children should live with their father in Florida
since she intended to move to Australia.
Exercise of Discretion
The Court of Appeal held that the trial judge was in error in determining that
there needed to be “clear and compelling” reasons to frustrate the objective of
the Convention. “The Convention and Regulations mandate the return of
children in certain circumstances. There are permitted exceptions to such
mandatory return. Once an exception has been established there remains
discretion to refuse to order a return. The discretion is large and requires
competing considerations to be carefully weighed before determining an
outcome. The factors to be considered will vary according to each case but may
certainly include giving significant weight in an appropriate case to the
underlying objectives of the Convention as stated in the preamble to the
Convention, namely a desire to protect children internationally from harmful
effects of their wrongful removal or retention and to establish procedures to
ensure their prompt return to the State of their habitual residence (para. 20).
The mother visited the U.S. in May 2006 and an
agreement was reached that the children could
visit Australia with their mother provided that they
were returned to the U.S. by July 30, 2006.
On June 21, 2006, the mother filed an application
in the Family Court of Australia seeking orders that
the children reside with her. The father
immediately filed an application for the return of
the children. The mother claimed that the retention
was wrongful but asserted that if the children were
returned to the U.S. there was a grave risk that
they would be exposed to physical and
psychological harm and placed in an intolerable
situation. Further, the children objected to their
return.
The Court of Appeal determined that the trial judge’s exercise of discretion was
vitiated by error and that it was appropriate that the Court independently reexercise the discretion (para. 21).
The Court of Appeal considered new evidence, including:
- The mother’s evidence that the father told her after the return order was
made that he would not honour his commitment to make financial
provision for her should she return to the U.S.;
The children were 9 and 7 at the time of their
removal.
4
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Children’s Objections
A family report was prepared by a family
consultant employed by the Family Court at
Brisbane. Ms. B reported that:
The children strongly indicated that they
were opposed to returning to live with their
father in the U.S;
- The children indicated that they were
unhappy living with their father and
perceived that he was not responsive to
their needs;
- The children were aligned with their mother
and claimed that they had no time for their
father;
- The children’s views should be taken into
account;
- The children were so distressed that living
with their father would impact on their
ability to settle back in the U.S. while the
matter was resolved by the U.S. legal
system;
- C had experienced suicidal ideation;
- A return to the U.S. would be disruptive to
the academic progress of the children; and
- The children would be at risk of
emotional/psychological harm if they were
returned to the U.S.
-
-
A letter from a lawyer to the mother advising her that any application to
an Australian court for a residency order needed to be made “as soon
as the children arrive in Australia” suggesting that the mother entered
into the agreement with the father in the U.S. in May 2006 if not with a
premeditated plan to retain the children, at least a prospect that she
may file such application shortly upon her arrival to Australia;
A letter from a doctor who said that she had been the children’s GP
since August 2005. She reported that the children were distressed
about having to return to the U.S. and about leaving their mother. The
doctor stated that the forced return to America would be very
detrimental to the children’s mental health;
A report from a psychologist to whom the child were referred. The
psychologist reported that the children enjoyed living with their mother in
Australia and were unhappy living with their father. She concluded that
C was exhibiting symptoms of major depression;
The Court of Appeal concluded that any decision to separate these children
from their mother pending a further hearing would be the mother’s decision,
rather than a necessary effect of the return order. The order did not
mandate the return of the children to their father, nor did it mandate the
separation of the children from their mother. The concerns expressed by the
professionals could largely be met by the mother ensuring that she stay with
the children while they awaited proceedings in the U.S. (para. 28).
The Court of Appeal stated that the appropriate outcome of the case was for
the children to be returned to the U.S. The Court considered the following
considerations when making a decision (para. 31):
- The objectives and principles of the Regulations and Conventions. The
purpose of the treaty to secure children against wrongful removal;
- The children were born in the U.S. and raised by American parents. The
parties and children remained in the U.S. after separation and the
parties submitted to the jurisdiction of the courts in the U.S.;
- The issue of the children residing with their mother had already been
determined by an American court. It is important to ensure the integrity
The trial judge determined that he was satisfied
that there was enough evidence to establish that
the mother had made out the case to bring the
matter under the exceptions described in
5
Case
Facts
Held
Weight
Given to
Child’s
Objection
Regulation 16. 16(3) of the Regulation states that
a court may refuse to make an order under
subregulation (1)…if a person opposing return
establishes that:
(b) there is a grave risk that the return of the child
under the Convention would expose the child to
physical or psychological harm or otherwise place
the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being retuned;
(ii) the child’s objection shows a strength of
feeling beyond the mere expression of
preference or ordinary wishes;
(iii) the child has attained an age, and a degree
of maturity, at which is it appropriate to take
account of his or her views.
Important Statements & Reasoning
-
-
-
The trial judge went on to state that:
- The children’s preference was a strong
preference to reside with the mother rather
than the father but it was not an objection
to being returned to the U.S. per se;
- The objection ground had been sufficiently
made out to give rise to the exercise of the
judge’s discretion to refuse to make a
return order;
- The most important matter to be taken into
account was the objectives behind the
Regulation and the Convention. The
purpose of the treaty is designed to secure
against abduction, wrongful removal or
wrongful retention.
-
-
of the juridical process so as not to reward those who evade the rule of
law;
That the difficulties that the children confronted arose from the mother’s
decision to leave the children and move to Australia. The mother’s
decision to relocate was not imposed on her, but the hardship was
imposed on the children;
The father offered to allow the children to remain in the mother’s primary
care in accommodation provided by him, with the mother to receive
financial support by way of spousal maintenance and child support. He
also proposed to meet the costs of professional counselling and
supported the appointment of a guardian ad litem for them. While the
mother was sceptical about this, the Court stated that it was not in a
position to resolve these doubts in the proceedings;
The mother proposed to accompany the children to the U.S.;
The children had strong wishes to remain in the mother’s care, and any
separation of the children from their mother may prove to be detrimental
to their welfare;
There was no realistic impediment to the mother remaining with the
children in the U.S. pending the outcome of further proceedings in that
jurisdiction; and
There is no reason to believe that issues concerning the future
residence of the children would not receive a proper hearing in the U.S.
At paragraph 32, the court stated that the principle of return is especially
significant when children have been retained by a parent with whom they are
visiting. They cited the case Re HB (Abduction: Children’s Objections) [1997]
FLR 392 to support this statement.
The court concluded that: “Balancing all of these considerations it appeared
clear to us that this was not a case in which it would have been appropriate to
exercise our discretion in favour of an order dismissing the application for return
of the children. These are American children whose American parents have
already had extensive involvement in the American legal system. That is the
appropriate jurisdiction to resolve ongoing issues as to where and with whom
The trial judge outlined the factors that he was
6
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
the children should live” (para. 33).
taking into account in the exercise of his discretion:
- The fact that the children were born and
raised in the U.S. and that the parties
remained in the U.S. after separation and
submitted to the jurisdiction of U.S. Courts;
- The mother chose to submit to the
jurisdiction of the U.S. on the very issue
that she wanted to re litigate in another
forum;
- It would be improper for a person to be
able to take the law into their own hands if
a decision did not suit them;
- It was the mother’s decision to leave the
children and move to Australia and the
decision to relocate was not imposed on
her;
- The children appeared to be doing well in
the father’s care prior to the wrongful
retention in Australia;
- The children’s statements greatly reflected
the fact that they missed their mother when
she left for Australia. The mother cared for
them prior to her departure;
- The counsellor observed that there was
alignment with the mother and children and
that some of the children’s statements
appeared to be skewed by limited
objectivity, insight and maturity;
- The children’s statements were made in
part, as a consequence of the children
being distressed about their mother’s
abrupt decision to leave them. In part, they
blamed their father for the mother’s
decision and inability to be with her. The
7
Case
Facts
-
Held
Weight
Given to
Child’s
Objection
Appeal
dismissed
– child not
ordered to
return to
the U.S.
Significant
weight
(court very
concerned
with child’s
resistance to
board the
plane and
the need for
use of force
by third
parties to
force the
child to
Important Statements & Reasoning
children were emotionally fragile;
The father’s affidavit claimed that the
court’s first and preferred course should be
to enable the children to return to the U.S.
in the company of their mother and remain
in the care of the mother. The father
offered to provide the mother with
accommodation, financial support (spousal
and child) and to pay for the children’s
counselling.
The trial judge concluded that this case was not
one of the exceptional cases where there was
clear and compelling argument to uphold the
objection and to frustrate the purpose of the
convention. The court ordered the return of the
children and stated that it “hoped and expected
that it is the mother’s intention to return with the
children to the United States”.
Re F (Hague
Convention:
Child’s
Objections)
[2006] Fam
CA 685
(Family Court
Australia)
The father was born in the U.S. The mother as
born in Australia. They married in the United
States, had one child, F, and separated in May
1999. In May 2003, an American court made
orders that granted the mother and father joint
custody of F and designated the mother as the
“domiciliary parent”.
In early August 2003, the mother brought F to
Australia. The father agreed for F to spend up to
six weeks visiting the mother’s parents. The
mother stayed in Australia with the child after that
period had expired. In early 2004, the father made
an application for the return of the child.
8
Fresh Evidence
The Court of Appeal did not admit the mother’s new evidence. However, the
Court agreed to admit a report from an officer from the Department of
Community Services who attended the airport with the child on May 13, 2006.
Further, the Court agreed to admit a report by the child psychologist.
Child Objections
The evidence from the officer who attended the airport indicated that the child
was hostile and oppositional to boarding a plane to the U.S (para. 46).
The counselling report by the child psychologist indicated the following:
- The child’s views of his father had grown more negative. The child’s
Case
Facts
The application was heard before the Judicial
Registrar who, on August 2004, ordered that the
State Central Authority make such arrangements
as were necessary to return the F to the U.S. The
mother and the State Central Authority consented
to orders that provided that the Central Authority
make arrangements for the return of the child to
the U.S. as soon as practicable in the company of
a person acceptable to the Central Authority. This
did not happen for various reasons. The father did
not have the funds to pick-up the child, the child
did not want to go, and the father’s home and
community was devastated by the cyclone in
Louisiana.
Held
Weight
Given to
Child’s
Objection
board the
plane)
Important Statements & Reasoning
-
-
In February 2006, the mother filed an application
to set aside the orders made by the Judicial
Registrar. Directions were made that same day
with the consent of the State Central Authority for
F to be interviewed to ascertain why he was
objecting to his return to the U.S. The Central
Authority did not contest the mother’s application
to seek a review of the orders of the Judicial
Registrar. The effect of the granting of that
application was to require the review to be
undertaken as a hearing de novo of the original
application.
-
rejection of his father and lack of guilt was consistent with the child
being alienated (para. 47).
The mother and father had a longstanding animosity towards one
another. It predated the move from the U.S. to Australia (para. 48).
The child had a strong conviction that he objected to the return to the
U.S. He saw his father as unsafe and as someone who did not listen to
him. He would resist any attempts to force him onto the place by kicking
and screaming, and if he was forcibly taken away to America, he would
run away (para. 49).
It was likely that the child’s feelings about the U.S. had been influenced
by the mother and her family (para. 50).
The psychologist found that the psychological effect of returning the
child to the U.S. was likely to be negative and adversely affect his
welfare (para. 51).
The child had demonstrated a sufficient level of maturity and it was
appropriate to take his views into account (by demonstrating the use of
emotions and by participating in hypothetical situations).
The child had shown an objection beyond mere expression of
preference or ordinary wishes (para. 52).
The Court of Appeal concluded that the evidence clearly showed that an
exception to the mandatory return of the child had been established The Court
then stated that it was required to use its discretion to determine whether a
return order should be ordered (para. 59)
The Court reviewed a variety of Australian case law. The court stated that “We
must however look at the case not out of sympathy for the plight that the father
finds himself in but coolly and objectively in the light of the provisions of the
relevant Regulations. The mother did not honour her earlier commitments to
ensure the return of the child to the United States in mid-2004. The father’s
financial circumstances apparently did not permit him to come to Australia to
ensure the proper enforcement of the 2004 orders. Hurricane Katrina
intervened. The child, apparently significantly aided and abetted by the maternal
grandmother, had whatever antipathy he had towards his father reinforced.
Two reports were prepared following interviews
with the child. The child expressed a wish to stay
in Australia and threatened to protest if he was
taken away.
9
Case
Facts
Held
Weight
Given to
Child’s
Objection
On April 28, 2006, Justice Lawrie delivered her
reasons for judgment, announcing that she would
be dismissing the application to set aside the order
that required the return of F to the U.S. Several
days later a warrant for the apprehension of the
child was executed with the child being taken away
from his home late at night and placed into foster
care.
Important Statements & Reasoning
Instead of supporting the child in alleviating the trauma to him of the
enforcement of the 2004 orders and the 2006 orders, those in the mother’s
camp appear to have continued to encourage the child in resisting the orders of
the Court. Whilst much of that conduct deserves criticism, we cannot ignore the
reality of the situation. In the circumstances it would be quite inappropriate for
the Court to follow the course urged upon it by counsel for the father of requiring
yet further counselling in an endeavour to persuade the child to withdraw his
objections. The provisions of the Regulations have run their course so far as
this family is concerned. The appeal must be allowed and the application for the
return of the child dismissed” (para. 70).
On May 9, 2006, the child was accompanied to the
airport by his maternal grandmother and aunts.
The child refused to board the plan to be taken to
the U.S and the father agreed to allow the child to
return home with his maternal grandmother. On
May 13, 2006 there was another attempt to have
the child board a flight to the U.S. The child
became distressed and insisted that he would not
leave Australia. The Federal Police attempted to
use physical force by taking the child by the arm
but he refused to cooperate.
Procedural Concerns
The Court of Appeal expressed concern that the Australian Central Authority
had not carried out the initial orders of the court which ordered the return of the
child in 2004. At the appeal hearing in July 2006, the Central Authority stated
that it did not have the funding to return the child to the USA. The Court of
Appeal expressed concern that where both parents lack the means to purchase
international airfares, Australia’s obligations under the Convention would be
rendered insignificant if the Central Authority Court did not return the child
(para. 79 to 81).
Child’s Objections:
- The child said that if he was ordered to
return he would “scream and yell so they
couldn’t put me on a plane” and that he
“didn’t want to go back and the
government shouldn’t be able to control
your life. I don’t see why I should”.
On June 7, 2006, the matter returned to Court
before the Judicial Registrar. The child was
appointed a Children’s Lawyer and it was ordered
that the child attend a psychologist.
10
Case
Facts
Held
Weight
Given to
Child’s
Objection
Justice Lawrie determined that while the child’s
return to the U.S. against his wishes would likely
cause him some distress, he would not be placed
in an intolerable situation or exposed to a grave
risk of harm. This finding was not challenged on
appeal.
Justice Lawrie concluded:
that there was no doubt that the child
objected to the idea of having to leave the
family unit he had lived in for the past 6
years with his mother, but that this was
different from objecting to a return to the
U.S.
- If the mother was living in the U.S., the
child would likely wish to live in the U.S.
with him.
That the child’s objections were “to
separate from the people he wants to live
with” and “not the idea of returning to the
U.S.”.
- That the child had communicated merely a
preference or ordinary wishes.
- While the child was described by the
counsellor as having a “high level of
maturity for his developmental age”, he
was not yet 12.
- The child was able to have some
independence in forming views, but
naturally had been influenced by both
sides.
- The child did not have a high degree of
maturity to understand the real issues and
could not distinguish between leaving one
11
Important Statements & Reasoning
Case
Facts
Held
Weight
Given to
Child’s
Objection
The appeal
was
dismissed
Little Weight
Important Statements & Reasoning
parent’s household for another, versus
leaving one country for another.
The judge concluded that: “In my view they are not
sufficiently weighty [the child’s views] to displace
the upholding of the Convention.”
H.Z. v. State
Central
Authority,
[2006] FamCA
466
(Full Court of
the Family
Court of
Australia
Melbourne)
In December 1995, the parties married in Greece.
There were three children born of the marriage, C
(8), D (5) and E (3). The father was born in Greece
and the mother was born in Australia to Greek
parents. The parties made their home in Greece
and all of the children were born and raised there.
Child Objections
The Court of Appeal stated that the mother’s appeal regarding the child’s
objections must also fail. The Court supported the trial judge’s view that having
regard to the child’s age and lack of maturity, it would not be appropriate to take
into account the child’s views. Given that the child was 8 years old at the time of
the hearing before the trial judge, “it is difficult to see how her Honour’s
conclusion could be the subject of a successful attack” (para. 77).
In June 2005, the mother brought the children to
Australia. She told the father that she and the
three children were going to spend a ten week
holiday with her family and would return to Greece
on a pre-paid airline ticket. In that same month, the
mother told the father that she would not return
with the children to Greece. She then cancelled
their airline tickets and moved the children to
Melbourne. The father applied for a mandatory
return of the children.
The Court also noted the puzzling fact that the mother conceded that if the two
younger children were returned to Greece, the mother would accompany them
and take the elder child with her. The court stated that “It remains puzzling
therefore as to what reliance was being made of the child’s objections” (para.
76).
At trial, the mother agreed that the retention was
wrongful. However, she claimed that (a) there was
a grave risk that the return of the children to
Greece
would
expose
them
to
physical/psychological harm or place them in an
intolerable situation; (b) the father had consented
to the wrongful retention and (c) the child, C,
objected to being returned to Greece and was of
an age/maturity at which it was appropriate to take
12
Case
Facts
Held
Weight
Given to
Child’s
Objection
his views into account.
Evidence of Child’s Objections at Trial
The Court of Appeal reviewed the evidence, at
trial, of C’s objection to returning to Greece.
The mother had given evidence that:
- She made a conscious effort not to discuss
court proceedings with C. Any mention of a
possible return to Greece caused the child
to become distressed;
- That C would have nightmares and recall
incidents of her father’s physical and
psychological abuse;
- That C was attached to her mother and
had a close relationship with her extended
family. C was distrusting of her father.
- That C’s objection being returned to
Greece was strong and based on her
experiences in Greece for a long time.
The child psychologist offered the following
evidence:
- C was mature, articulate and responsible.
She had advanced developmental capacity
and ideas beyond someone of her age.
- C was able to distinguish her views from
the views of others.
- C objected to returning to Greece and
expressed a clear preference to live in
Australia with her mother.
- C referred to her family in Greece in
negative terms. She lacked respect for her
13
Important Statements & Reasoning
Case
Facts
-
-
-
Held
Weight
Given to
Child’s
Objection
father; she considered him crazy; he hit
her; she was fearful of him.
C experienced her mother as a protector.
C’s objection was obvious in her emotionsshe had a feeling beyond the mere
expression of a preference or ordinary
wish.
There was a possibility that the child’s
views had been influenced by her mother
and extended family.
C’s ability to comprehend the long term
implications of her expressed views were
limited. She did not understand the long
term implications of not returning to
Greece on her relationship with her father
and paternal grandparents.
Trial Judge’s Decision
The trial judge concluded that none of the
exceptions had been established. In particular, C’s
views about not wanting to return to Greece did
not constitute an objection within the meaning of
Article 13(2) of the Convention.
Regarding C’s objections, the trial judge stated
that:
- Her objection must be assessed in the
context of a stark and unfavourable
comparison she draws between Greece
and Australia
- The child genuinely did not want to return
to Greece
- C did not have a realistic perception of
14
Important Statements & Reasoning
Case
Facts
-
-
-
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Held
Weight
Given to
Child’s
Objection
Significant
weight
Important Statements & Reasoning
what it would be like for her if she did not
have to live in her paternal grandparent’s
home. C viewed her grandparent’s home
to be hostile and cramped.
She was not satisfied that C had attained
an age and maturity where it was
appropriate to take into account her views.
C was not yet 8 years old.
C had no experience of Greece outside of
the negative environment of her paternal
family’s house.
Her objection was against being taken out
of Australia or returning to her father’s
home rather than objecting to Greece or
the Greek way of life.
BELGIUM
Case
N° de rôle:
02/7742/A,
Tribunal de
première
instance de
Bruxelles,
27/5/2003
(First Instance
Tribunal of
Facts
The child, a boy, was 11 years old at the date of
alleged wrongful retention. His parents had not
been married, and had separated in 1993. The
child had remained with his mother in Italy since
then.
On June 21, 2001, the father took the child to
Belgium (where he had been residing since at
least 1998). The reasons and circumstances of the
removal were disputed. According to the mother,
Return
refused;
the
retention
was
wrongful
but the
child’s
objections
to a return
Child Objections
The Court noted that the child was almost 13 years old at the time of the
hearing and pointed out that it would have to be checked whether:
(1) The child had sufficient age and maturity for his opinion to be taken into
account; and
(2) The opposition expressed by the child was sufficient in light of the
Convention.
Regarding the age and the maturity of the child, the Judge considered that there
15
Case
Facts
Held
Brussels)
the child’s stay was only to have been a short one
(in order for him to attend the wedding of someone
in the father’s family), whereas the father alleged
that the mother had asked him to be the primary
caregiver of the child. In July 2011, the mother
asked that the father be returned.
were
upheld.
(This case is
not an
appellate
decision, but
a case of first
instance).
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used].
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
was nothing in the official report of the child’s interview that indicated that he did
not have the necessary objectivity to give a balanced and enlightened opinion.
Although the child was not very talkative, he nevertheless gave specific,
balanced and enlightened views. It seemed that he understood the meaning
and scope of the questions. The Court concluded that the child had reached an
age and maturity where it became appropriate to take such opinion into
account.
On March 6, 2003, the Court deemed the request
admissible and dismissed the exceptions raised by
the father relating to ineffectual exercise of custody
by the mother and the mother’s consent to the
retention.
With regard to the child’s opposition, the applicant, referring to decisions made
in Australia, England, the U.S., and New Zealand, stressed that the child’s
opposition had to be clearly independent, sufficiently deep and evidenced. The
Court discussed two of them and considered that if the exceptions referred to in
the Convention had to be construed restrictively, then it was out of the question
to add conditions to those provided by the Convention. It added that the child
had expressed a categorical refusal to return to Italy since he felt at home in
Belgium, which as not the case in Italy where he didn’t have any friends and felt
abandoned by his mother. The child had also excluded any final return to his
country of origin. The Judge considered that the opposition was not the
expression of a simple preference to be looked at by one parent over the other,
but was the demonstration of a detailed opinion comparing what he had known
in Italy to what he was experiencing in Belgium.
The question of the child’s objections to return
remained open while waiting to hear the child. The
child was heard by the Judge on March 13, 2003.
The Court pointed out that it was not only facts that were in question, but also
feelings: it was true that the child had not been completely abandoned by his
mother, but that was what he felt. The Court admitted that it was illusory to think
that a child could be completely impermeable to what the parent he was living
with was experiencing, thinking or saying, especially if he liked it there. This is
not, however, to say that the parent automatically influences a child’s opinion
when it agrees with a parent.
Considering the child’s hearing, the Judge considered that it did not appear that
the child had been directed or manipulated by the father. On the contrary, he
had explained simply and clearly the reasons for his refusal, reasons above all
linked to his feeling of abandonment. He had even pointed out that he would not
16
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
have felt abandoned if the mother lived in Belgium, in which case there would
have been no problem of the care of the child being shared by the parents. The
Court concluded that the exception of Article 13(2) was applicable and
dismissed the request.
CANADA
Case
Facts
Held
R. M. (also
known as
R.S.) v. J.S.,
2012 ABQB
669 (Alb. Q.B)
The parents were married in 2001 and lived in
Jerusalem, Israel until they separated in 2006.
They had one child, N.S. who was born in Israel
and was 10 years of age at the time of the hearing.
Appeal
dismissed;
child not
ordered to
return
home
The parties separated in 2006 when the father
moved to Canada. They divorced in Israel in 2008.
Issues of custody and access were not addressed
in the divorce. The child stayed with his mother in
Israel after separation.
Weight
Given to
Child’s
Objection
Significant
weight
Important Statements & Reasoning
Affidavit on EU
At the appeal, the Court permitted the child’s counsel to introduce a new
affidavit dealing with how EU countries deal with the voice of the child in Hague
Convention matters. This affidavit was in response to the Appellant’s argument
that EU countries’ interpretation of Article 13 of the Convention was influenced
by their domestic law, which placed an obligation on the courts to hear from the
child. She argued that there was no such obligation in Canada.
Position of the Parties
Starting in the summer of 2008, the child began to
spend his summers in Calgary, Alberta with his
father. At the end of the summer of 2011, the
father did not return the child to Israel. The mother
started an action under the Hague Convention for
the return of the child.
The mother argued that the trial judge relied on inapplicable precedents, in
particular: (a) those from EU countries where it was alleged that a different
standard applied in relation to the voice of the child and (b) those cases from
Canada which deal with the voice of the child in cases other than Hague
Convention cases. The mother relied on the decision of Den Ouden v.
Laframboise, 2006 ABCA 403, where the court stated that to allow the
children’s objectives as a reason to exercise discretion under Article 13 of the
Hague Convention would be to “undercut the fundamental objective of the
Hague Convention. That would lead other parents to believe that they may
abduct their children, go to another country, settle there, and then rely on the
children’s contentment to avoid being returned to the jurisdiction which should
The trial judge determined that the child had been
wrongfully detained by his father and that he
should be returned to Israel unless a defence
could be raised. The father raised Article 13 and
17
Case
Facts
Held
Weight
Given to
Child’s
Objection
the child’s objections. The judge found that the
child objected to being returned to Israel and was
at an age and maturity where it was appropriate to
take account of his views.
Important Statements & Reasoning
properly deal with their custody and residence. We cannot encourage such
conduct” (at para. 16).
The mother also argued that:
(1) The trial judge relied on an English decision, WF v. RJ, [2010] EWHC
2909 where the objection to return by a younger child was found to be
determinative of the issues as well as Canadian cases involving private
custody disputes where the voices of the children were more often
considered;
(2) The trial judge dismissed the grave risk argument of the father and was
therefore required to dismiss the children’s objections since many of the
factors cited by the trial judge in assessing the child’s views were the
same factors raised by the father in the grave risk category;
(3) The evidence relied on came from the child through his counsel. The
mother claimed that the evidence was not independent. Counsel for the
child is an advocate for the child’s wishes; and
(4) The father had the opportunity to influence the child’s views since the
child had resided for him for a year at the time of the initial hearing and
the child had not seen his mother for that period of time.
The mother appealed. The father did not make
submissions and was not represented by counsel.
The child was represented by counsel as he had
been in the hearing in Provincial Court.
Counsel for the children argued that:
(1) He was appointed by the court and interviewed the child without
preconceived ideas. He did not simply put forth the child’s wishes. The
lawyer cited the Order that appointed him, which specifically indicated
that he could consider the child’s views and protect the child’s interests
without being bound by the child’s directives or objectives.
(2) His questions to the child were provided to him by a psychologist whom
he retained to assist.
(3) He found no undue influence by the father.
(4) He found the child to be mature for his age, bright and articulate when it
came to describing concerns about returning to Israel.
Alberta Queen’s Bench decision
18
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The Court agreed with the trial judge that the father’s behaviour in withholding
the child was egregious. The father should have returned the child at the end of
the summer and then made an application for custody to the court in Israel
(para. 18). However, the Convention did provide a defence to the return of the
child even when such a return has been found to be appropriate. “Article 13 is
part of the Hague Convention. It has to have a purpose. It cannot simply be
ignored. Two preconditions must be met however: the child must object to the
return and the court must find that the child is of sufficient age and maturity
where it is appropriate to take account of his views” (para. 18).
The Court disagreed with the mother’s view that the trial judge was overly
influenced by cases where the child’s view was simply accepted as
determinative. The Court found that in none of the cases was the child’s view
found to be determinative. It was a factor to consider (para. 19).
The Court stated that Judge O’Gorman prepared extensive reasons for
judgment. He considered all of the case law presented. He found N.S. to be of
an age and maturity where his views should be considered. He did not find that
they were determinative. He considered the circumstances as a whole. He did
not find that there was undue influence by the father. He found the grounds of
the objection set forth by the child to be articulate and well considered (par. 20).
“The findings of fact by Judge O’Gorman are reasonable on the evidence before
him, and he correctly applied the law to those findings” (para. 22).
A.M.R.I. v.
K.E.R., 2011
CarswellOnt
3972 (Ont.
C.A.)
The parties married, separated and divorced in
Mexico. The father moved to Canada in 2006.
The mother had custody of the parties’ daughter in
Mexico. In 2008 the daughter travelled to Canada
to visit her father and aunt. She informed her
father and aunt that her mother was physically and
emotionally abusing her in Mexico.
The trial
judge’s
decision
was set
aside. The
Court of
Appeal
ordered a
new
Very strong
The trial judge failed to properly consider the exceptions to the return that were
critical to the decision of whether to order the child’s return to Mexico. The Court
of Appeal stated that on this ground alone, the order of return could not stand
and a new Hague Convention hearing would be necessary (para. 93).
Re: Child’s Objection:
The court stated that in the context of a child refugee, the views of the child
“gain greater importance. As the exercise of authority to return the child to
19
Case
Facts
In May 2010, the child was found to be a refugee
by the Immigration and Refuge Board in Canada
because of the abuse of her mother. After the girl
had been living in Toronto with her aunt for about
18 months, her mother brought a Hague
Convention application in Ontario to compel the
child’s return to Mexico.
Held
Weight
Given to
Child’s
Objection
hearing
based on
oral
evidence.
Important Statements & Reasoning
Mexico engaged hers s.7 Charter rights, her return could only be affected in
accordance with the principles of fundamental justice. Those principles required
that her views be considered on the Hague Application in accordance with her
age and maturity. The fact that the child was not a party to the application does
not detract from her right to be heard’ (para. 109)
Why the child’s views should be heard:
(1) S 64(1) of the CLRA states that the court should take into consideration
the views and preferences of the child to the extent that the child is able
to express them. While 64(2) applies to custody, access and
guardianship proceedings, recognition of the child’s right to be heard on
a Hague application conforms to the spirit and intent of the CLRA (para.
110)
The trial judge held that the child had been
wrongfully retained in Ontario and granted an
order for her immediate return to Mexico. She was
returned to Mexico despite her protests at the age
of 14. The father appealed the trial judge’s
decision.
(2) Article 12(1) of the CRS stipulates that the views of a child are to be
given weight due to the child’s age and maturity and that a child has the
right to “express those views freely in all matters affecting the child”.
Article 12(2) of the CRC confirms this right in the context of judicial and
administrative proceedings effecting he child” (para. 11).
The child is 14 and is clearly of an age and maturity such that he objection to
her return to Mexico should be considered. The Court of Appeal stated that the
trial judge recognized this. He indicated that the child’s objection was not the
deciding factor but went on to observe that “there is a 13 year old or a 14 year
old who we are making decisions about and she has no direct involvement”
(para. 112).
The trial judge accepted the mother’s counsel’s argument that the Convention
did not give the child “the right to be directly involved” but that it merely required
that “her voice ought to be heard in appropriate circumstances” and that her
voice had been heard (para. 113). The Court of Appeal found this to be an
error- “Given the child’s age, the nature of her objection, her status as a
Convention refugee, the length of time she had been in Toronto, and the
absence of any meaningful current information regarding her actual
20
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
circumstances in Toronto at the date of the hearing, her views concerning a
return to her mother’s care in Mexico were a proper and necessary
consideration” (para. 114)
The Court of Appeal went on to say that the child’s section 7 Charter rights were
triggered by the Hague application, and that she should have been provided
with meaningful procedural protections such as notice, adequate disclosure,
reasonable opportunity to respond to the case, a reasonable opportunity to
have her views on the merits of the application considered and the right to
representation (para. 120)
The Court of Appeal concluded that an oral hearing is required to determine
serious credibility issues in Hague applications involving refugee children.
Fundamental justice requires that these issues be determined via an oral
hearing (para. 125). The mother’s continued denial of abuse and the need to
determine if any exceptions to the return under the Hague Convention had been
made out in this case required credibility-based factual findings. The child
should have the opportunity to participate in the new Hague Convention
hearing. The exceptional nature of the case requires an oral hearing with viva
voce evidence (para. 126).
Beatty v.
Schatz, 2009
CarswellBC
2016
(B.C.C.A.)
The parties had one child and separated in 2004.
The mother lived in Ireland with the child and the
father lived in Canada. The Irish order was that the
parents have joint custody of the child, with the
primary residence being with the mother.
The appeal
was
dismissed.
Very little
because of
the influence
of the father
The father was awarded permission by the Irish
court to bring the child to Canada for a vacation to
he gave a sworn undertaking for the return of the
child. The child was 10 at the time.
Child Objections
The trial judge took the approach that although the child’s views were to be
considered, taking into account of a child’s views does not mean that they are
determinative or even presumptively so (para. 14).
The trial judge found that the father had subtly given the child the message that
he did not have to go back to Ireland even if a court said that he must (para.
15).
The trial judge stated that while the child was bright and could express his
wishes, he was not mature enough to understand what was happening and the
long term consequences of it in terms of his well-being (para. 16).
The father did not return the child. The child was
11 years old and expressed that he wanted to
21
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
remain living with his father in Canada.
The trial judge said that the policy considerations of the Hague Convention were
important. The purpose is to secure the prompt return of abducted children and
to deter abduction in the first place (para. 16).
The mother brought an application for the return of
the child and it was granted. The trial judge
ordered that the child be returned to Ireland. The
father appealed.
The Court of Appeal stated: “…I cannot agree that the chambers judge erred in
declining to give effect to the child’s wishes….” (para. 19). “The trial judge
correctly interpreted Article 13 as giving her discretion. She regarded A’s wishes
as one factor, certainly an important factor, to be considered amongst others,
including the importance of ensuring that children are not wrongfully removed
from their home jurisdictions or wrongfully retained elsewhere.” (para. 20).
In this case, there was evidence to support the trial judge’s findings. She gave
serious consideration to A’s expressed wishes, but concluded that these wishes
had been influenced by the child’s father and the onus of the father to justify the
continued retention of the child in Canada was not met (para. 21).
Mitchell v.
Mitchell, 2009
CarswellOnt
911 (Ont.
S.C.J.)
Both of the parties were Canadian citizens and
resided in the U.S. The parties separated and had
joint custody of their son.
After separation, the husband continued to reside
in Florida. The mother returned to Canada in 2008
and brought her son. The father initiated a Hague
application.
Application
granted.
Child
ordered to
return to
Florida.
Very little
Child’s Objections:
Article 13: “Article 13 provides that a court may refuse to order the return of a
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 provision is obviously subject to judicial discretion. It does not require a
judge to automatically accede to the child’s stated wishes even if he or she finds
the child objects to being returned and the child has attained a degree of
maturity” (para. 72).
The mother claimed that the father had verbally
and physically abused her and her son.
The court noted that the mother claimed that the child’s maturity was evidence
of his intelligence and gifted abilities. The court stated that “while I note that by
all accounts he is a bright child, that does not necessarily equate to maturity”
(para 73).
Re: Child’s Objections
The mother claimed that Daniel was afraid of his
father and objected to being returned to Florida.
The mother claimed that the child was mature
because he was gifted and intelligent.
The court felt that Daniel was “caught in a vortex of a custody battle” (para 74).
The child had not spoken to his father since he was taken to Canada and there
22
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
was significant “likelihood that Daniel’s expressed sentiments have been
skewed by this state of affairs” (para. 75).
The court placed little weight on a letter produced by a reverend regarding the
child’s views. The court stated that it was given no evidence of the reverend’s
educational or professional background in order to determine if he had the skills
to interview the child and to provide the court with an assessment. There was a
fear that the document mirrored the mother’s views on the situation (para. 74).
“In my view, there is no independent reliable evidence before me concerning
Daniel’s wishes or his necessary maturity. Further, in the complicated
circumstances of this case, I do not believe that I have the necessary skills or
expertise to gage whether any of his expressed views are truly his own. That is
why I declined the request of counsel for the mother to interview Daniel. It is my
view that a full custody and access assessment should be performed by a
qualified expert. This case cries out for such an assessment. It is my view that
these issues are best dealt with in the Florida court, the jurisdiction in which the
child was habitually resident before he was wrongfully removed and wrongfully
retained.” (para. 76)
Christodoulou
v.
Christodoulou
, 2009
CarswellOnt
6275 (Ont.
S.C.J.)
The mother was born in Canada but had many
relatives in Cyprus. On one of her vacations she
met the father. The couple married in Canada and
had three children. The children were raised in
Canada. Due to the father’s urging, the mother
reluctantly agreed to move to Cyprus. The mother
was unhappy there.
The mother told the father that she was taking the
children to soccer and left for Canada. She did so
without the father’s consent.
The
application
was
dismissed.
The
children
were to
stay in
Canada.
Significant
weight
Evidence of George’s Objection:
The court heard evidence from the Office of the Children’s Lawyer about
George’s objections. George was 9 years old.
George’s objections were as follows:
- He associated Cyprus with his family falling apart;
- He viewed himself as a Canadian;
- Cultural issues: Cyprus houses were crowded and dirty, he did not like
the food, he hated his Greek school, he was bullied by the children in
school; and
- He thought Cyprus was “uncivilized”. People were rude and yelled at
each other, people double parked everywhere and the grocery stores
The father brought an application for the return of
the children to Cyprus.
23
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
ripped people off (para. 70)
The social worker described George as intellectually mature and articulate. He
had a preference to live in Canada and wanted his dad to return to Canada
(para. 72). The social worker confirmed that the child had received adult
information from both sides of the family (para. 74).
Court’s conclusion:
The court found that George had obtained an age and degree of maturity and it
was appropriate to take his views into account. His views expressed a strong
aversion to the Cypriot way of life and a strong attachment to his Canadian
roots. The court found that while the child had been manipulated by both sides
of his family, he was overall, at an intellectual age beyond his 10 years and that
any manipulation by either side of the family was of neutral effect. The court
concluded that “The evidence related to his objections should therefore be
given significant weight” (para. 149)
Crnkovich v.
Hortensius,
2008
CarswellOnt
6951 (Ont.
S.C.J.)
The parties were divorced parents of an 11 year
old child. The father was a U.S. citizen and the
mother was Canadian. The parties lived in Indiana
during the marriage and upon separation. The
parties had shared custody of the child and his
primary residence was with the mother.
The court
held that
the child
had been
wrongfully
removed.
Very little to
none
In 2007, the mother applied to relocate to Canada
with the child but the mother’s petition was denied.
The father obtained a temporary order restraining
the mother from taking the child to Canada.
Article 12 restricts the jurisdiction of the court when considering whether to have
a child returned to another jurisdiction. There was no question that the child was
wrongfully removed because his habitual residence was Indiana. The Indiana
courts had and should continue to have the jurisdiction to rule on matters of
custody, access and mobility. The Indian court ordered Bradley not to be
removed to Canada and the mother did so anyway (para. 23)
Article 12 requires that the child be returned forthwith. The policy of the Hague
Convention favours ordering the immediate return of the wrongfully removed
children so as to deter the abduction of children by parents unhappy with the
legal process in the jurisdiction of the habitual residence of the child. The use of
the word “shall” limits the Court’s remedial jurisdiction where it finds that a
wrongful removal has occurred. The court cannot consider the parent’s
evidence about the preferable schooling, financial/employment etc., all matters
that are considered in determining the best interest of the child will be
canvassed by the court in Indiana (paragraph 25).
In 2008, the mother went to Ontario to renew her
driver’s license and was not admitted back into the
U.S. due to her minor criminal record, and she was
not a U.S. citizen, nor was she any longer married
24
Case
Facts
Held
Weight
Given to
Child’s
Objection
to someone in the U.S. The father applied for the
return of the child pursuant to the Hague
Convention.
Important Statements & Reasoning
Re: Child’s Objections:
Maturity and Age
The child’s objections to returning and his age and maturity must be proved
(para. 30).
Re: Child’s Objection: The mother argued that the
court should refuse the removal because Bradley
objected to being returned and was old and mature
enough to make the decision. His views should be
taken into consideration.
“The child’s age and maturity are preconditions to the child’s objection being
considered. It would matter not how adamantly the child was objecting to
returning if he was too young and/or immature for the court to consider the
objection” (para. 30).
The mother’s evidence: The child told his
paediatrician that he wished to continue to live with
the mother. The mother asked that the OCL or a
private assessor be appointed to report on the
child’s wishes.
The court stated that the evidence in the case of both Bradley’s maturity and his
objection were not extensive (para. 31). The court found that the child met the
test of being at an age and maturity where it was appropriate to take into
account his views. He was a well-rounded child, “intelligent” and communicated
well (paragraph 32).
Objection Criteria
“ To meet the ‘objects’ criteria, it must be shown that the child displayed a
strong sense of disagreement to returning to the jurisdiction of his habitual
residence. He must be adamant in expressing his objection. The objection
cannot be ascertained by simply weighing the pros and cons of the two
competing jurisdictions, such as in a best interests analysis. It must be
something stronger than a mere expression of preference” (para. 35).
There was scant evidence of Bradley’s alleged objection to returning: The
Paediatrician’s notes revealed that the child simply “preferred” to be with his
mom. A preference implies that he would be happy with either parent but that if
he had to choose, he would stay with his mother. “A preference falls short of
objecting to returning to Indiana to live with this father” (para. 36).
The court refused to appoint an assessor or the Office of the Children’s Lawyer
25
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
to ascertain the child’s views. The court found that the child had been seen by
many professionals and there had been ample time to canvas the child’s
feelings. The most said or done was the expression of a preference (para. 37).
Influence:
The court found that the appointment of a professional at the current stage of
the proceedings would run the risk of producing a skewed result. The child lived
with his mother who was anxious to continue the status quo. She could be
tempted to influence the child in what position he would take during the
interviews. The judge stated that he had more confidence in the results of the
interviews when they were completed at a time when the parties were not
focused on the Hague Convention (para. 38).
De Silva v.
Pitts, 208
CarswellOnt
41 (Ont. C.A.)
The father was an American citizen. The mother
was a citizen of Sri Lanka. The parties lived in
Oklahoma and their son was born there.
After the parties separated they obtained an order
that neither party could remove the child from
Oklahoma. Despite this order, the mother removed
Jonathon to Sri Lanka. After his removal, the father
obtained an order that he have custody of the child
in the U.S. The mother also obtained an order that
she have custody of the child via a Sri Lankan
court. From 1996 to 2003, the child lived in Sri
Lanka and the father visited him.
In 2003, the mother and Jonathon moved to
Canada. In 2005, the child went to visit his father
in the U.S. He did not return. He had lived with his
father in Oklahoma for more than two years and
was 14 years of age.
The court
stated that
the
Oklahoma
court’s
decision to
not return
the child
merited
deference.
It was not
a clear
misinterpre
tation of
the Hague
Conventio
n.
Significant
weight
Re: Child’s Objections:
“Article 13(2) requires a court to engage in two inquiries: (1) does the child
object to being returned; and (2) has the child attained an age and degree of
maturity at which it is appropriate to take into account his or her views?” (para.
42)
The court found that the Oklahoma court had privately interviewed the child.
The judge found the child to have “remarkable grasp of the situation, the conflict
between the parents and the proceeding”. He showed no influence by the
father. The judge felt that the child had obtained an age and degree of maturity
whereby his views should be given weight (para. 44)
The Ontario Court of Appeal concluded that the child was nearly 13 years old
and had attained an age and degree of maturity that warranted taking his views
into account. The Court saw no basis for challenging the conclusion of 2 U.S.
courts (para. 46)
26
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The mother obtained an Ontario order stating that
she have custody of the child. The mother brought
a petition in Oklahoma seeking an order that the
child be returned to Canada.
The American court denied the mother’s request to
return the child because: (a) the mother was using
the Hague Convention to overcome her violation of
the non-removal order in Oklahoma; and (b) the
child preferred to stay in the U.S. The mother
appealed and it was dismissed.
The issue at the Ontario Court of Appeal was
whether the Ontario courts had the jurisdiction to
determine the custody of Jonathon.
Den Ouden v.
Laframboise,
2006
CarswellAlta
1693 (Alb.
C.A.)
The parties had three children aged 14, 10 and 5.
The father was a Dutch citizen and the mother was
Canadian.
The parties moved to Holland in 1992 and
separated in 2004 after the father had an extramarital affair. The mother returned with the
children to Canada in 2005 where she found work
and enrolled the children in school. The mother
claimed that the father had consented to the move
but the father denied this. The father commenced
an application to have the children returned to
Holland so that the local court could decide
custody and the children’s residence.
Appeal
dismissed
and
children
returned to
Canada.
Moderate
Mother’s Grounds of Appeal: (para. 8)
(1) The Court erred in failing to find that either of the two children objected
to returning to Holland;
(2) The Court erred in failing to find that either or both of the two older
children had attained the age and degree of maturity at which it was
appropriate to take into account their views;
(3) The Court erred in failing to find that the respondent had consented to
the removal of the children from Canada;
(4) The Court misstated the date of the children’s removal and date of
consent, thereby affecting the judge’s view of other important elements
including the length of time that had elapsed between the father’s
consent and the date of removal; and
(5) The Court had erred in law in not finding a credibility issues with respect
to the father’s evidence, where his written text messages conflicted with
his affidavit evidence.
The lower court heard the father’s application and
heard evidence that the two older children did not
wish to return to Holland. The chamber’s judge
The Children’s Objections
27
Case
Facts
Held
Weight
Given to
Child’s
Objection
granted the father’s application and the mother
appealed.
Important Statements & Reasoning
“Wish” v. “Object”
The Court of Appeal summarized that the evidence before the chambers judge
included assertions from the older two children that they were unhappy and
settled in Canada and that they did not wish to return to Holland. The chambers
judge chose not to interview the children. Instead, the judge received their
letters and noted that they had not said that they “object” to being returned to
Holland; rather they said that they did not “wish” to return. The trial judge saw a
difference in the meaning of these words and implied that a “wish” did not
amount to an “objection” and was deficient. (para. 11).
The Court of Appeal stated that this was not an important issue. A fair reading
of the chambers judge’s reasons showed that his distinction between a wish
and an objection was simply a passing observation (para. 12).
Age & Maturity of the Children
The Court of Appeal said that there was merit to the mother’s argument that the
trial judge had erred in failing to find that either or both two older children had
attained an age and maturity level where it was important to take their views
into account. Especially as this argument related to the oldest child. The eldest
child was 14 and was excelling in school and the letter she wrote was coherent
and eloquent, which showed that she had reached an age and degree of
maturity where her views should be taken into account. The evidence regarding
the younger sister, age 10, was less clear (para. 14).
The Court of Appeal reviewed the evidence about the children: they were
settled in Canada and enjoyed the environment including their new school and
friends. They liked Canada and did not wish to have their lives disrupted by
returning to Holland (para. 15). The Court of Appeal stated that these feelings
were completely understandable and not unexpected. The mother devoted
herself to the children’s care and provided for them. However, the Court stated,
“…to exercise the court’s discretion permitted by Article 13, and to give effect to
28
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
the feelings of the children who find themselves in such situations would
undercut the fundamental objective of the Hague Convention. That would lead
other parents to believe that they may abduct their children, go to another
country, settle there, and then rely on their children’s contentment to avoid
being returned to the jurisdiction which should properly deal with their custody
and residence. We cannot encourage such conduct” (para. 16).
The Court concluded that: “…although the chambers judge may have erred in
failing to find that at least one of the children possesses sufficient maturity to
have her views taken into account, in the circumstances of this case, that error
was not fatal. There is no suggestion that the children will be at risk of harm if
they are returned and no question of splitting up the family such that one or two
of the children would remain, while the youngest and their mother return to
Holland” (para. 17).
On the remaining grounds of appeal the Court concluded the following:
(1) Consent to the removal: There was conflicting evidence on this issue.
The trial judge concluded, based on the evidence, that the father did not
consent to the removal. The Court of Appeal stated that it would not
interfere with this decision and that the Dutch court could have the
ultimate say on this issue based on a much better record of evidence
(para. 18).
(2) Misstated dates: The Court of Appeal concluded that this mistake was
not significant when considered in light of the other evidence (para. 19)
(3) Credibility issue with respect to the father: The Court concluded that this
was an issue for the Dutch court to consider when it determined custody
and access (para. 20).
Garelli v.
Rahma, 2006
CarswellOnt
2582 (Ont.
S.C.J.)
The parties lived in Italy and had two children
before separating. The parties were granted joint
custody of the children with the mother being their
primary caregiver.
The mother took the children on what was
The
application
was
allowed.
The
children
The older
child’s
objections
were given
moderate
consideratio
29
Child’s Objections
The court permitted the appointment of an Children’s Lawyer for the children for
the following reasons (para. 18):
- The expiry of the one year period meant that there was no mandate for
a return order;
Case
Facts
Held
intended to be a four week visit to Ontario to see
relatives. The mother had purchased return tickets
in advance and the father had given approval of
the trip. The mother did not return by the intended
date and informed the father of her intention to
stay in Canada. The father laid criminal charges
against the mother but did not apply for the return
of the children in an Ontario court for over one
year.
were
ordered to
return to
Italy. The
strong
objections
of the older
child to
stay in
Canada
were
considered
but
ultimately
subsumed
by the
interests of
having
both
children
stay
together.
The father brought an application for the return of
the children. The mother raised the defence of the
children’s objections to returning to Italy.
Weight
Given to
Child’s
Objection
n.
Important Statements & Reasoning
-
-
Given that the children had not seen their father for so long, the court
was reluctant to simply accept the mother’s statement of the children’s
views and preferences; and
The children were nine and fourteen. The information conveyed to the
Children’s Lawyer by the children would likely be more detailed,
balanced and complete than the statements provided with the mother.
The judge stated that he would have to decide whether the children had
reached the age and maturity where their views should be taken into account an
whether either child objected to being returned. “In my view, simply deciding
those issues on the basis of the mother’s statements as to what the children
have said to her is potentially unfair to both the father and the children” (para.
19).
The court posed a series of questions derived from Wilson v. Challis for
investigation by the Children’s Lawyer:
(1) Whether one of both children has attained an age and degree of
maturity at which it is appropriate to take account of the child’s views;
(2) Whether either child does object to being returned to Italy. If so is the
objection: (a) to returning to live with the mother in Italy with access
visits to the father; (b) to returning to live with the father in Italy or (c) on
some other basis”?;
(3) Is the child expression a strength of feeling which goes beyond the
usual expression of the child’s wishes in a custody dispute?; and
(4) Are the views that the child is expressing his own, independent views or
are they influenced by some other party or person who has been in
contact with the child? (para. 20)
The court concluded that the children were at an age and maturity where it was
appropriate to take into account their views. The sons were 15 and 9. Both
children were able to articulate their views (para. 34).
“Objects” should be given its usual and ordinary meaning, of expressing
disapproval, disagreement or opposition to something. Within the context of the
30
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Hague Convention, the objection must be to returning to the country of habitual
residence and not merely an expression of a preference as to a custodial
parent. And the court ought to consider the reasons provided by the child. In
every case to which I was referred where effect was given to the child’s
objection, the reasons for the objection were substantial such as important
psychological, language and educational factors, or were related to parental
misconduct by the parent seeking the child’s return” (para. 36).
The evidence of the OCL showed the following:
- Adnan objected to being returned to Italy and Ivan did not (para. 40)
- Adnan did not express any substantial reasons against Italy and his
father. The court in Italy was equipped to consider his views and
preferences and to provide a fair hearing for the bays
- Ivan did not object to his return to Italy. The judge stated that he was
bound to order his return (para 41)
The judge noted that while Adnan didn’t want to return to Italy, the court was
bound to order Ivan’s return. “The principles of deterrence, prompt return of the
child, respecting the status quo and entrusting the court of habitual residence
with the best interest determination, combine in my mind to outweigh Adnan’s
objection. In reaching this conclusion, I have also placed significant weight on
the reasons for his objection, namely his ties to the community here, not any
specific complaint about his father, or objection to Italy, per se (para. 42).
Riedel v.
ThompoulosDanilov, 2005
CarswellOnt
6448
The children and parents were all citizens of the
United States. The parties had joint custody of
their son and daughter, with their primary
residence with their mother.
The children lived with their mother in California
except from 1991 to 2001 when they lived with
their mother in Toronto. The children then lived
with their father in California from January to
August 2005. A California court granted the father
The son
was
ordered to
return to
the father.
The father
had
custodial
rights to
the son
Little weight
because of
the influence
of the
mother
31
The court noted how the child’s dismissive attitude towards the father mirrored
the mother’s attitude and comments about the father. Also, the child showed no
fear of his father (para. 10).
The father put forward evidence that the mother was pressuring the children.
She told them to call their lawyers to allow them to stay in Canada, not to smile
in pictures with dad, not to write anything nice about dad, not to hug/kiss dad,
etc. The mother told her son that he was a “wus” for not standing up to his dad
(para. 15) The child also put forth contradictory statements that implied his dad
was not violent when angry (para. 18). The mother also instructed the child to
Case
Facts
Held
with both legal and physical custody of the children
in 2005.
and the
son’s
habitual
residence
had been
in
California
immediatel
y before
breach.
Both of the children went on a two week vacation
with their mother. The daughter returned to
California after the vacation but the 11 year old
son refused to return. He claimed that he did not
want to return because his father yelled at him and
hit him.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
try to get his father to hit his girlfriend so that the police would get involved and
he would lose custody of the children (para. 19).
“On a preponderance of evidence, however, I conclude his objection is the
result of the mother’s powerful influence on him, which she has exploited to
keep Richie here. The evidence overwhelmingly supports the finding that Richie
is extremely vulnerable to his mother’s influence…Through Richie’s own view,
he nevertheless has little choice but to confirm his mother’s position and refuse
to return to Canada. His mother has told him, and he believes, he will not see
her again if he goes back to California…Richie desperately loves his mother. He
will do or say whatever it takes to please her for fear of losing her if he goes
against her wishes” (para. 29).
The court concluded that the child had not attained an age or maturity where it
was appropriate to take into account his views (para. 31). The child could
express his objection but did not know the advantages and disadvantages of his
decision. He was not able to discern how he was “drawn into his mother’s
psyche” (para. 32). In contrast, the daughter was able to show a greater degree
of maturity and insight about their mother’s efforts to influence their feelings and
decisions (para. 32).
“What Richie says is, of course, important. It will be taken into account in the
custody dispute which is ongoing in California. However, at age 11, he has
been subject to seven years of parental conflict without resolution. He has been
put in the middle of the conflict and pushed to take sides. In these
circumstances it would be wrong to let his views govern the court’s decision
about his return (para. 33).
Toiber v.
Toiber, 2005
CarswellOnt
8366 (Ont.
S.C.J.)
The parties were married in the Ukraine and had
two children. The parties moved to Israel in 1994
and divorced in 2003. The terms of the divorce
granted custody of the children to the mother.
The Israeli court granted leave for the mother to
Application
allowed.
The
children
were
ordered to
Very little
given the
mother’s
influence
32
Child’s Objections
“…the court should be cautious in assigning undue weight to such a document,
given the almost inescapable conclusion that the sentiments expressed no
doubt mirror some of the mother’s sentiments…Objectively read the sentiments
expressed by Liliya are no more, in my view, than those often expressed by a
Case
Facts
remove the children to visit relatives with the
father’s consent. The mother came to Canada with
the children and launched refugee claims.
The father brought an application under the
Hague Convention.
Held
Weight
Given to
Child’s
Objection
return to
Israel.
Important Statements & Reasoning
child caught in the vortex of a custody battle. That being the case, it is clear on
the authorities that those are issues best dealt with by the courts in the
jurisdiction in which the child was habitually resident immediately before the
removal or retention” (para. 36).
The mother claimed that she had been abused by
the father and that she needed to seek refuge with
friends and women’s shelters in Israel.
Re: Child’s Objections
The mother relied on a hand-printed note of her
daughter Liliya, which stated that she didn’t want
to be around her father, that he yelled at her and
that she didn’t want to hear from him again.
C. (J.R.) v. M.
(L.C.), 2003
CarswellNfld
280 (Nfld.
S.C.)
The parties married in the Louisiana and had two
children (9 and 3 years of age). The parties had
marital problems and a counsellor facilitated an
agreement between the parties under which the
mother was to attend a family wedding in Canada
with both children in July 2002 and to return home
in August. The mother refused to return home with
the children and the father initiated an application
under the Hague Convention.
Re: Child’s Objections
The court
found that
the
children
had been
wrongfully
retained
and
ordered to
return to
the U.S.
Very little
given
mother’s
influence
Child’s Objection
The court stated that “the child’s objection is only relevant under the Convention
where the child has an age and degree of maturity where it is appropriate to
take those views into account”. The court was not prepared to find that Caitlin’s
age or level of maturity was such to consider her objection (para. 27).
Further:
- The child’s objection was not based “upon her own independent
assessment of the situation”. The evidence showed that the child was
“privy to much of the marital discord between her two parents”. She had
heard her mother’s “own spin on things” that had allegedly happened
during the relationship. The mother had testified that she had discussed
her marital issues with the child.
- The child had been in the care of her mother with little interaction with
her father for a year. There is a strong dependency between the child
and mother (para. 28).
Caitlin did not wish to return to Louisiana.
33
Case
A (J.E.) v. M.
(C.L.), 2002
CarswellNS
425 (N.S.C.A.)
Facts
The parties were married in Iowa and had a
daughter. They separated a year later and
remained in Iowa.
Following separation, the mother had made
numerous false allegations about the father
physically and sexually abusing the child. The
assessments consistently failed to confirm the
abuse so the mother fled from Iowa with the child.
The mother went to British Columbia illegally,
remarried and then moved to Nova Scotia.
Held
Weight
Given to
Child’s
Objection
The trial
judge’s
decision
was
upheld.
The order
for the
return of
the child
was
confirmed.
Very little to
none
Important Statements & Reasoning
“Other than in exceptional circumstances, the best interests of children in
custody matters should be entrusted to the courts in the place of the child’s
habitual residence. To accomplish this, the courts of the country in which an
abducted child is found to give effect to the custody orders made by the courts
of the place of the child’s habitual residence by directing that the child be
returned to that place.” (para. 23)
“A person who abducts a child in violation of the rights of custody determined by
the courts of the place of habitual residence is, by the abduction, attempting to
circumvent the due process of law in that place. In addition, the abducting
parent is seeking to establish new and artificial jurisdictional links with the courts
of another place more to his or her own liking. The abducting parent is,
therefore, not only unilaterally severing the child’s relationship to the other
parent but also is unilaterally selecting a forum most convenient to the
abducting parent for consideration of the child’s best interests” (para. 25)
The father became aware of the mother’s
whereabouts when the mother became involved in
another divorce. The father applied for the
immediately return of the child.
“Deterrence of international child abduction is therefore one of the most
important objectives of the Convention. This deterrence is achieved through the
refusal by the courts of the place where an abducted child is found to accord
any legal recognition to the circumstances resulting from the abduction (para
29.)
At trial, the court ordered that the child be
returned. The child was nine years old, had not
had any contact with the father for at least seven
years and had expressed the view that she feared
her father and did not want to return to him. The
trial judge gave the child’s views little weight in
light of the mother’s manipulation. The judge also
found that familiarity with the community in Nova
Scotia did not amount to being “settled in” so as to
preclude removal.
“It follows that the Court which is asked to order return is not to address the
child’s best interests in anything other than limited and exceptional respects.
Instead, the Court’s primary obligation is to ensure the return of the child to the
place where those best interests ought to be determined” (para. 30)
Child’s Objection:
The mother appealed on the ground that the trial
judge erred to give effect to the child’s objection
and failing to find that she was now settled in new
environment.
The trial judge did not make an error of law. The mother did not challenge the
judge’s finding that the child’s return did not expose her to a risk of physical or
psychological harm. In light of this finding and the fact that the child’s objection
was based on fear of her father, the trial judge did not err in concluding that the
34
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
child’s objection undercut the objectives of the Convention (para. 49)
The judge did not make an error of fact. The judge referred to the child as
“bright, articulate and mature” but also noticed that the child struggled to explain
her reasoning for her statements (para. 51).
Contrary to the mother’s appeal basis, the trial judge took into account the
child’s objections. The judge considered her objection in the context of a record
as a whole and determined in his discretion that, in light of all of the
circumstances, he would not give effect to it (para. 52).
“He concluded from the evidence that, not with S. K.’s young age, it was
appropriate to take account of her views. Having done so, he was obliged to
decide how much weight to give her objection. The Convention, after all, gives
the child a voice, not a veto. In deciding how much weight to give this objection,
the judge had to consider the whole context in which it came to be
expressed…The judge found that he had serious concerns about how
independent K’s objection was and the degree to which it appeared influenced
by the mother and the circumstances” (para. 53)
The trial judge’s conclusion that the child had been influenced was accurate.
There was a “mountain of evidence” that the child was dependent on the
mother; showed a lack of independence; was a nervous child; and that she was
extremely connected to her mother and perceptive of her actions. There was
evidence of co-dependence that develops when a child and parent are in coflight (para. 56).
Szalas v.
Szabo, 1995
CarswellOnt
4785 (Ont.
Gen. Div)
The parents were both Hungarian citizens and
were married and divorced in Hungary. The
mother was awarded custody of the two children.
The father remarried and immigrated to Ontario
where he started a second family.
For several years, at the father’s request, the
Father’s
appeal
was
dismissed.
Trial
judge’s
decision
Little weight
35
“The Convention is designed, among other things, to avoid forum shopping and
immediately to return the children to the jurisdiction in which they would reside
but for the wrongful removal or retention. It is designed to facilitate expeditious
resolutions. The power granted to the receiving state not to order the return
over the child’s objections is not mandatory and is clearly one to be based on
an exercise of discretion” (para. 5).
Case
Facts
children visited in Ontario during the summers. In
1993, while the son was visiting his father, the
mother signed a document giving permission for
the son to extend his stay in Ontario. The father
used the document to apply for and obtain landed
immigrant status for his son. The next summer, the
daughter visited Ontario and she allegedly
expressed that she did not want to return to
Hungary.
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The Court of Appeal determined that the trial judge’s inferences were clearly
supportable on the evidence before him (para. 6).
was
upheld.
The trial judge referred to these allegations of maternal abuse as part of the
father’s previous strategies, manipulation and influence of the father over the
children (para 52 of the lower court decision, 1995 CarswellOnt 889).
The father claimed that the mother and he had
agreed to a long term arrangement whereby the
children would reside with him.
Both children alleged that their mother had
engaged in excessive corporal punishment. The
trial judge noted that this allegation had not been
raised in the earlier affidavits of the children.
The mother brought an application in Ontario for
the return of the children.
The trial judge ordered that Rita be returned to her
mother in Hungary and declined to make an order
for the return of Zoltan pending an application by
the mother in Hungary for a decision that Zoltan’s
continued retention in Canada was wrongful.
The father appealed. The father’s main claim was
that the trial judge made inappropriate inferences
that led him to conclude that, as a result of
manipulation by the father, the expressed desires
of the children to remain in Canada were not
compelling.
36
Case
Wilson v.
Challis, 1992
CarswellOnt
1504 (Ont.
C.J.)
Facts
Held
Weight
Given to
Child’s
Objection
The father had custody of the children in the U.K.
The child’s mother had died. The child went to visit
his maternal grandparents in Ontario. The
grandparents refused to return the child to his
father
The court
refused to
return the
child to the
father. The
child
objected to
being
returned
and had
reached a
sufficient
degree of
maturity at
age 11 for
the court to
consider
his views.
Significant
weight given
Important Statements & Reasoning
Child’s Objections
“I believe that the problem facing the court is to initially ascertain if the child
objects to being returned, and if so, whether the child has attained an age and a
degree of maturity which would make it appropriate to take into account its
views. The court then must make a decision as to whether it is exercising its
discretion or not. If the discretion is not exercised, then the court can embark
upon a determination as to the existence of a grave risk of physical or
psychological harm. In my view, there is no point in embarking into a hearing
concerning grave risk if the application is to be disposed of by a refusal to issue
the order on the basis that the child objects to return and has obtained the age
and degree of maturity that its views should be acted on” (para. 4)
The court permitted a Children’s Lawyer to represent the child to ascertain his
views.
The court indicated that it was of the opinion that the child could have been
interviewed in the proceeding to determine his views and preferences via the
section 64 of the CLRA (para. 18).
Based on the evidence, the court concluded that Luke’s wishes were more than
preferences. The child objected to the return because: (a) his father trafficked
drugs and used drugs; (b) his father drank excessively; (c) his father had used
physical discipline; (d) his father brought home female friends and he could
hear them having sexually intercourse; and (e) his father didn’t pay attention to
him (para. 25)
On the issue of parental influence, the court relied on the assessment which
stated that no evidence had been found to support a conclusion that the child
was being influenced (para. 26).
37
CHINA
Case
S v. S [1998] 2
HKC 316
(High Court of
the Hong King
Special
Administrativ
e Region)
Facts
Held
Weight
Given to
Child’s
Objection
The child, a boy, was 6 ½ at the date of the
alleged wrongful removal. He was born in England
and had lived there his entire life. The parents
were separated and the mother had physical
custody of the child.
Return
ordered
and
undertakin
gs offered.
The
removal
was
wrongful
and the
standard
required
under
Article
13(1)(b)
had not
been met.
No weight
In 1995, the contact between the father and child
had been irregular. The father issued a contact
application in 1995 and was granted increased
contact to the child. The mother opposed the
increase of contact on the basis that the child’s
asthma problem was related to being on the
father’s turkey farm.
On July 23, 1997, the mother applied to relocate
with the child to Hong Kong but this was rejected
by the Leicester Country Court.
Important Statements & Reasoning
The Hague Convention
“The main objective of the Hague Convention was to ensure the uniform and
speedy return of abducted children. International uniformity was to be achieved
by requiring mandatory return orders to be made with very limited exceptions
(article 12)”.
Grave Risk
The risk of physical harm must be substantial or severe, not trivial. A high
degree of intolerability of harm must be established. The test is a stringent one
and will only be satisfied in exceptional circumstances. The assertion that a
child that suffers from respiratory illness, would face a grave risk of harm by
exposure to turkeys on the family farm in England was rejected by the Court.
The Court ordered the father to obtain a report on the condition of the child and
to take the proper medical steps to protect the child from any risks on the farm.
Child’s Objections
On December 6, 1997, the mother took the child to
Hong Kong, her state of origin. On January 24,
1998, the Hong Kong Central Authority initiated
return proceedings.
The Court stated that the mother had to establish three elements before the
Court could have the discretion not to return the child. The essential elements
were that the child:
(1) Must be of a sufficient age at which it is appropriate to take account of
the child’s view;
(2) Must be of a degree of maturity at which it is appropriate to take account
of the child’s view; and
(3) Must express a valid objection to being returned.
The Court found that the child was only 6 and that this as “a very very young
age, and for me, it is really too young an age at which it is appropriate for a
court to take account of a child’s view…Having seen the child and talked to the
child today, I am confirmed in my view that he is really too young for his view to
38
be taken into account”.
The Court then dealt with the child’s maturity. The child’s wishes indicated a
normal boy with a greater attachment to his father than mother and a healthy
need for friends and play. The judge had met with the child and said that he
found the child to be very shy, clingy to his mother and not very responsive. He
was intelligent but nevertheless behaved like a 6 year old and was not
particularly mature. On this basis, the Court was satisfied that the child’s views
should not be taken into account.
With regard to the nature of the child’s objection, the Court found that the child
had expressed a wish or a preference rather than a valid objection. The child
was naturally close with his mother, his primary caregiver, and would naturally
want to stay with her. His view of not wanting to go back to the UK was directly
connected to the mother staying in Hong Kong. The court stated that “It has
been said and it is accepted by the parties that the objection I must consider is
the objection to the country not to the person who will be living with the child in
a particular country. A fair test of this is whether the child would still object to the
United Kingdom if the mother will be in the UK and the father in Hong Kong. If
not then the preference is not country related but person related”. The Court
concluded that the child did not have a valid objection as it was related to the
mother staying in Hong Kong.
The Court also stated that the child’s views should not be taken into account
given that it is more than likely that his recent closeness to his mother would
have influenced his preference for Hong Kong.
The Court applied Emmett v. Perry (1995) FLC 82-519, which states that the
time of the objection by the child is when the abduction took place. On that
basis, according to the father’s diary around the time of the removal, the
preference of the child would probably have been for a return to the UK.
Exercise of Discretion
The Court stated that it would exercise discretion in favour of returning the child
for the following reasons:
(1) The possible harm that the turkeys on the father’s farm posed to the
39
(2)
(3)
(4)
(5)
child could be corrected and controlled by the appropriate measures
which a the UK Court could order;
The Hague Convention is to discourage abduction and to secure the
speedy return to the home country and therefore a return to the UK is to
implement the policy of the Hague Convention and compels the mother
to dislodge her illegal disadvantage gained by the abduction;
The child, although half Chinese. had been brought up in the UK, his
only home so far and it would be wrong to suddenly cut him off from his
school, friends, animals, countryside and his father;
The proper jurisdiction to determine the long term future of the child is
the UK Court; and
There is always a possibility for the mother to live in the UK (either
because her work in Hong Kong is not more successful than in the UK
or that she prefers her son to her medical career). There was no
realistic chance of the father moving to Hong Kong to be a turkey farmer
and to be near his son.
The Court stated that even if the court had found that the there was a grave risk
of harm to the child and the child’s objection should be taken into account, the
Court would have exercised its discretion by ordering the immediate return of
the child.
DENMARK
Case
V.L. B-1572-09
(Vestre
LandsretWestern High
Court- 2009)
[Full case not
available on
INCADAT or
online.
Facts
The parties met in the Netherlands and had a
daughter in 1998. The parents divorced in 2008
and had joint custody of the child. The girl lived
with her mother until January 2008, when she
decided to live with her father. The father was a
citizen of Nigeria and her mother was a citizen of
Denmark.
Held
The appeal
was
dismissed.
Weight
Given to
Child’s
Objection
None
Important Statements & Reasoning
Rights of Custody
The mother had visitation rights and she had not given her permission to the
father to take the girl to Denmark. Therefore the removal was wrongful.
Grave Risk
After a conversation with the girl, the judge ruled that there was no grave risk of
harm to the girl of returning to the Netherlands. The girl had daily contact with
her mother and had seen her on a regular basis before the wrongful removal.
The child lived in the Netherlands until April 2009,
when her father married a Danish woman and
40
Case
INCADAT
summary
used]
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
moved to Denmark. The child was 10 at the time of
her removal.
Preparations had also been made for the girl’s return to the Netherlands, taking
her dyslexia problems into account.
A District Court in the Netherlands decided that the
girl should stay with her father and the mother
should have visitation rights. The mother had
multiple sclerosis and received treatment for her
depression.
Child Objections
The appeal judge ruled that there was no proof that the child would resist a
return to the Netherlands. To meet the defence, you need to show proof of an
objection by the child.
The mother issued proceedings for the return of
her daughter. The Bailiff’s Court ordered the return
of the girl. The father appealed.
ENGLAND
Case
Re J
(Abduction:
Children’s
Objections),
[2012] 1 F.L.R.
457
(England and
Wales Court
of Appeal)
Facts
Held
The parties were Polish and had three children,
ages 15 (K.) 13 (JA) and 10 (JU). When the parties
separated, a court in Poland awarded custody to
the father and access with the mother.
Appeal
allowed.
The case
was
remitted to
the trial
court for
exercise of
discretion.
The
retention
was
wrongful but
the children
objected to
After the parties’ separation, the mother relocated
to England. In September 2010, she applied to the
Polish Court to vary the contact order and was
granted holiday contact in the United Kingdom
three times a year.
During the children’s July 2011 holiday in England,
the mother applied to the Polish court for custody
and relocation of the children to England. She
failed to return the children at the end of their 3
Weight
Given to
Child’s
Objection
Significant
weight
Important Statements & Reasoning
Child’s Objections
The Court of Appeal found that the children succeeded on the second ground of
appeal, mainly that the trial judge did not make a clear finding with regard to the role
that the children’s objections should have.
At paragraph 29, the Court stated that “Although he might have had a distaste for the
mother’s strategy, the evidence as to the nature and extent of the children’s
objections was certainly not scant or weak. A clear finding that the children’s
objection had not been made good would have been the end of the case and
presented the mother with a single and clear ground of appeal. Equally a proper
exercise of discretion would only be triggered and conducted by an unequivocal
finding that the objections had been made good (para. 29).
With regard to the first ground of appeal, the court stated that “the submission that
41
Case
Facts
year week vacation. The father immediately
applied for their return.
Re: Child’s Objections
The mother stated that the children objected to
their return. Also, the High Court team interviewed
the children and prepared a written report that was
presented at the second directions hearing. The
family court reporter reported the following:
- The children expressed a strong wish to
remain with their mother.
- In particular, K said that he would “fight”
and not get on a plane
- The report stated that if the court
determined that the children should return
to Poland, K was 15 and could seek his
own legal counsel and be considered
competent to give instruction if he did
Held
Weight
Given to
Child’s
Objection
their return
to Poland
and were of
sufficient
age and
maturity for
their
objections
to be taken
into
account.
the judge of his own motion should have joined the children as parties is
unsustainable”. The issue was not raised by mother and had it been raised, it would
have been quickly dismissed (para. 30).
However, the Court went on to state that the judge had erred in not at least raising
the need to meet the children face to face. The Court noted the number of reported
cases that emphasized the desirability of a meeting between judge and children
(para. 33). In particular he cited Re G (Abduction: Children’s Objections), which
discussed the growing perception that the judge at trial should hear the voice of the
child (para. 34).
The Court went on to say that “Return orders in respect of a boy on the threshold of
escape from the court’s Convention jurisdiction and determined to fight enforcement
need to be very carefully thought through by any trial judge. There are enough
incidents in the report of the distress and general mayhem caused by the making of
return orders that were foreseeably bound to provoke dramatic scenes. In these
cases an option open to the judge is a meeting at which practicalities, consequences,
and reassurances can be ventilated. The judge sits above family turmoil. The judge’s
authority can be an influence for acceptance. Importantly a meeting gives the judge
an opportunity directly to assess where the return order will lead if enforcement will
be resisted “(para. 40). The court again repeated that the trial judge had erred, but
that had this been the only ground of appeal, it would not have been allowed.
However, the judge went on to state that “I would not lose the opportunity of
emphasizing the importance of judges engaging children in the process directly in
cases where the indications are as strong as here” (para. 42).
In October 2011, the High Court ordered the return
of the children.
The mother appealed but was denied leave. The
children were granted leave to appeal. They
claimed that: (a) the trial judge had failed to deliver
a clear decision as to whether they objected to
return and (b) the judge had fallen into serious
error in not ordering separate representation for
the three children (para. 24).
Re G
(Abduction:
Child’s
The proceedings related to siblings born in
England to British parents. In 2006, the father
moved to Canada for work and the family joined
Important Statements & Reasoning
The Court remitted the case to the court below. It held that since the children’s
objections to being returned had been established, the trial judge’s only task was to
decide how to exercise his discretion (para. 44).
Appeal
allowed and
return
Significant
weight
Child Objections
The Court of Appeal stated that the judge was right to focus on the second defence,
42
Case
Facts
Held
Objections)
[2010] EWCA
Civ 1232
him. In 2009, the marriage was in difficulty and the
mother secretly took the children back to England.
refused.
The
removal
was
wrongful but
the children
made valid
objections
to a return.
(England and
Wales Court
of Appeal)
In August 2010, the High Court found that the
removal was wrongful, but while the children
objected to the return, the Court exercised its
discretion to send them back.
The mother appealed.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
namely the objections of the child to return. He had statements before him from the
parties and the statement of the CAFCASS officers that the children had a real
objection, not just of returning to Canada with their father but to return to Canada
itself. The Court of Appeal went on to state this was “hardly surprising” given that
there childhood and schooling had been in England. “With their revived attachment to
maternal grandparents in this jurisdiction, to the extended family here, to their friends
here, to their schooling here, an objection to the country rather than to the specific
domestic circumstances was perfectly understandable”. The Court of Appeal went on
to say that the judge was right to conclude that the children’s objections were
sufficiently established. He considered whether the views expressed by the girls were
their own or implanted and considered the children’s maturity and understanding
(para. 9).
The Court of Appeal questioned to what extent the trial judge had heard the voice of
the children. He stated at paragraph 15 that “There is, in this branch of international
family law, a growing perception that the judge at trial should hear the voice of the
child: that is implicit in the Hague Convention itself but made explicit by the United
Nations Convention on the Rights of the Child 1989. Of course, the manner in which
the judge hears the child is a matter of local custom and tradition. In this jurisdiction,
judges in the High Court have not traditionally in modern times heard the voice of the
child directly but through the officer of the court, the CAFCASS officer. That tradition
is now under scrutiny, debate and revision…” The judge stated that with hindsight it
was unfortunate that the trial judge had not met with the eldest child (para. 15).
The father’s lawyer argued that Hague Convention cases should not be decided
based on what the children want. The Court of Appeal stated that the trial judge had
considered the objections and had concluded that the girls should not return.
Therefore, the Court of Appeal stated that it would not intervene with the decision
(para. 18).
The Court of Appeal accepted that the trial judge’s direction as to the law was proper.
However, there was now fresh evidence, noticeable representations made by the
older child and evidence from a meeting that the Court had with her, which indicated
that her position had strengthened. The court stated: “A court needs to be alive to the
43
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
difficulty of implementing a return order, where the subject of the return order is an
articulate, naturally determined and courageous adolescent. Emily is such a child. I
also was impressed by the cogency of her reasoning for rejecting Canada as a future
for her, as a country where she could complete her education with the necessary
sense of security and peace of mind. Everything she said about the challenge of her
education in her present secondary school, everything that she said about her
reliance on a wider family and friends in Middlesborough, drove me to the conclusion
that the judge might well have refused return had he had the advantage which we
have today. It is highly unusual for this court to meet a child before deciding an
appeal. It is the first time I have ever had that experience, but I believe that it was
justified and necessary in this case, given the fact that the judge did not himself meet
Emily and did not seemingly attach much weight to the letter that she had written to
him as a decision maker” (para. 21).
Re W.
(Minors),
[2010] EWCA
520 Civ
(Court of
Appeal (Civil
Division)
The mother was British and the father Irish. In
2001 they began to cohabit in Ireland. All three
children were born there. The relationship between
the parents was unhappy, with occasions of
violence and problems with alcohol.
Father’s
leave to
appeal
refused.
Significant
weight
Children’s Objections
The Court of Appeal stated that the issue of whether the two older children objected
to being returned to Ireland and whether they had attained the age and degree of
maturity at which it was appropriate to take account of their views depended on the
evidence of the Cafcass officer who interviewed them together for three weeks prior
to the hearing. Her evidence was as follows:
In June 2009, the mother removed the children to
London.
(a) Their level of maturity was commensurate with their ages;
(b) They told her that the father had physically chastised them and that they were
scared of him and did not want to have contract with him;
(c) G spoke vividly of being required by the father to look at blood in his vomit;
(d) Both of them spoke of an incident in which a brick had been thrown through a
window of the home in Ireland and which had very much upset them;
(e) They said that they loved their mother, their home and school in London;
(f) They categorically indicated that they did not want to return to Ireland;
(g) They objected to returning to Ireland, it was not just a preference for
remaining in England;
(h) Although they found it difficult to distinguish between the return of the family
to Ireland its return to life with the father, the children did manage to do so in
10 days after the removal, the father travelled to
London and persuaded the mother to reconcile.
This ultimately failed and the father returned to
Ireland and issued return proceedings.
In March 2010, the Family Division of the High
Court refused the father’s application. While the
removal had been wrong. The two older children
had valid objections and should not be sent back.
It was also held that the youngest child should not
be sent back alone because there was a grave risk
44
Case
Facts
Held
Weight
Given to
Child’s
Objection
that he would be exposed to psychological harm or
placed in an intolerable situation.
Important Statements & Reasoning
that, with reluctance, they said that, were they to return to Ireland, it should be
to an address far away from the father and unknown to him; and
(i) When earned at the end of the interview that, despite their views, a judge
might order them to return to Ireland, D became very agitated and
uncomfortable and cried (para. 15).
In April 2010, the father sought leave to appeal.
Permission was refused and court set out its
reasons. At the time of the appeal, the three
children were age 3 (“C”- boy), 6 (“G”- girl) and 8
(“D”- boy).
The father’s first ground of appeal was that one child, G, was only 6 years old and far
too young to have his views taken into account. The Court of Appeal stated that the
father’s submission “seems to have been well founded”. In particular, “The defence
was originally devised as an escape route for mature adolescents only slightly
younger than the age of 16 at which, under Article 4, the Convention ceases to
apply….But over the last thirty years the need to take decisions about much younger
children not necessarily in accordance with their wishes but at any rate in light of their
wishes has taken hold…”. The Court went on to say that fortunately Article 13 was
drawn in terms sufficiently flexible to accommodate this development in international
thinking and quoted the observation of Baroness Hale in Re D (A Child) (Abduction:
Rights of Custody), [2006] UKHL 51, where she stated that “children should be heard
far more frequently in Hague Convention cases than has been the practice hither to”
(para. 17).
The Court of Appeal then concluded that “in any full appeal Mr. Devereux would not
be able to persuade us that the age of G by itself foreclosed the possibility that she
had objections to returning to Ireland of which account should be taken under Article
13. There is however concern, which I share, that lowering of the age at which a
child’s objections may be taken into account might gradually erode the high level of
achievement of the Convention’s objective, namely- in the vast majority of cases- to
secure a swift restoration of children to the states from which they have been
abduction. Such is a consideration of policy which should always carry significant
weight in exercise of the discretion whether to refuse to order the return of an
objecting child, but particularly so if that child is young…A considerable safeguard
against such erosion is to be found in the well-recognized expectation that in the
discretionary exercise the objections of an older child will deserve greater weight than
those of a younger child.” (para. 18).
45
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The father’s second ground of appeal was that the evidence of the Cafcass officer
disclosed, at most, objections on the part of D and G to returning to a home in Ireland
in which the father would be present as opposed to objections to returning to Ireland
itself. The father referred to a statement made by the children whereby they stated
that if they returned to Ireland, they wanted to be at an address far away from the
father and unknown to him. The Court of Appeal found this to be a confirmation of the
children’s maturity that they could distinguish between life in Ireland and life with their
father in Ireland. In particular “The fact that they could articulate it does not
demonstrate that they did not object to it; and their adverse reaction to the Cafcass
officer’s final warning was another factor which entitled the judge to accept the
officer’s assessment that they objected to returning to Ireland “ (para. 20).
The father’s third ground of appeal was that the evidence before the trial judge was
too minimal to enable the judge to find that D and G had attained an age and maturity
at which it was appropriate to take into account their views. The Court of Appeal
clarified that “to take into account” under Article 13 had been a confusion in earlier
jurisprudence, “The phrase not means no more than what it says so, albeit bounded
of course by considerations of age and degree of maturity, it represents a fairly low
threshold requirement. In particular, it does not follow that the court should “take into
account” a child’s objections only if they are so solidly based that they are likely to be
determinative of the discretionary exercise which is to follow” (para. 22). The Court of
Appeal concluded that it was open to the trial judge to accept the officer’s evidence
and to conclude that the children were mature and that their views should be taken
into account. The father was aware, for nearly 2 months that the mother proposed to
submit that D and G had attained a degree of maturity for which it was appropriate to
take into account their views. The father had ample time to adduce evidence about
their low level of maturity (para. 23).
The father’s fourth ground of appeal was that when the trial judge exercised her
discretion in relation to D and G, she failed to refer to various relevant factors, such
as their ages and degree of maturity, the confidence one should have in the Irish
courts to make decisions, the undertakings by the father to ensure a peaceful life for
the family in Ireland (separate from him) and the negative impact that a refusal order
would have on his relationship with him. The Court of Appeal stated that the judge
46
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
referred to all of the factors, save the last one (para. 24).
The father’s last ground of appeal was that, in conducting that same discretionary
exercise, the judge had attributed some but insufficient weight to the seven factors
and had attributed excessive weight to three others. The Court of Appeal stated that it
was rare for an appeal against discretionary weight to succeed- it is the essence of
discretion that a judge attributes weight as they see fit (para. 25). The Court of
Appeal noted that the children were young and that although their maturity was
sufficient to meet the threshold; their views were not highly sophisticated. This
militated in favour of return notwithstanding their objections. However, the factor
which strongly militated in the opposite direction was that, by the date of the judge’s
decision, the family had settled into London for 9 months and instead of swiftly
bringing proceedings, the father had allowed time to pass despite knowing where the
children were and he even joined the family in London for two months (para. 26).
Lord Justice Sedley independently added to the decision by noting his reservations
about the definition of “discretion”. He stated that under the Hague Convention,
discretion was more appropriately described as “an exercise of judgment”. “It’s
components have to be explicitly identified, evaluated and balanced so that the
parties, especially the losing party, the public and other courts can understand and
appraise the decision” (para. 28).
WF v. RJ
[2010] EWHC
2909 (Fam)
(High Court of
Justice,
Family
Division)
The father was born in Germany and the mother
was born in the UK. The parties were married in
Germany and had two children born in 1996 and
1998.
Procedural Issues
(1) Representation of B
The Court stated that the child did not have a power to instruct the lawyer
without a guardian ad litem or a litigation friend. The Court went on to say that
it was irregular for the court to agree to have a lawyer act as B’s litigation
friend, but it was permitted in these circumstances as the lawyer had already
completed a considerable amount of work.
The parties separated and the children stayed in
the mother’s principal care while the father had
regular access. The mother remarried and the
second marriage was characterized by domestic
violence. The violence was significant and
disturbing and had a profound effect on the
children’s lives.
(2) Party status of R
47
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The Court stated that it was important for the voice of a child to be heard in
proceedings under the Convention. By virtue of Article 11(2) of the Brussels II
Revised, there is a presumption (in EU cases) that a child should be given the
opportunity to be heard unless it appears inappropriate to the court having
regard to the child’s age and maturity.
In March 2010, The mother wrongfully removed
the children from Germany to England. The father
applied for the return of the children.
Prior to the hearing, a deputy judge determined the
following preliminary issues: the children would be
joined as parties to the proceedings, an officer
from the CAFCASS would be invited to represent
R and that the children should be represented by a
firm specializing in child abduction work.
Children’s Objections Case Law
For the purpose of the proceedings, R (12 years of
age) was assessed by a psychologist who
concluded that he was functioning at the age of a
10 or 11 year old and 12 to 18 months below his
chronological age.
The court stated that it was required to consider:
(1) If the child objects to being returned;
(2) If the child has attained an age and degree of maturity where it is appropriate
to take into account their views; and
(3) How the court should exercise its discretion.
However, the court stated that it would be preferable for the child to be seen
by the CAFCASS team before any decision was made as to the child’s party
status.
The court summarized the well-established principles under Article 13:
 The child’s objections are entirely separate from article 13(b);
 The question of whether the child objects to being returned and if they have
attained the age and degree of maturity at which it is appropriate to take into
account their views are questions of fact which are in the purview of the trial
judge;
 The return to which the child objects is that which would otherwise be ordered
under Article 12 of the Convention: to an immediate return to the country from
which the child was removed or retained;
 There is no particular age that a child is to be considered as having attained a
sufficient maturity for his or her views to be taken into account; and
 The court may focus as to whether the child has reached a stage of
development at which, when asked the question, “do you object to a return to
your home country”, he or she can be relied on to give a reliable answer,
which does not depend on instinct alone, but is influenced rather by the
discernment a mature child brings to the question’s implications for his or her
48
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
best interests in the long term and the short term.
Discretion: Case Law
The Court provided a very important summary on the exercise of discretion as related
to child objections: “In child’s objection cases, the range of considerations may be
even wider than those in the other exceptions. The exception is brought into play
when only two conditions are met: first, that the child himself objects to being
returned and, secondly, that she has attained an age and degree of maturity at which
it is appropriate to take account of her views. These days, and especially in the light
of Article 12 of the United Nations Convention on the Rights of the Child 1989 courts
increasingly consider it appropriate to take account of a child’s views. Taking account
does not mean that those views are determinative or even presumptively so. Once
the discretion comes into play, the court may have to consider the nature and
strength of the child’s objections, the extent to which they are ‘authentically her own’
or the product of the other considerations which are relevant to her welfare, as well
as the general Convention considerations referred to earlier. The older the child, the
greater the weight that the objections are likely to carry. But that is far from saying
that the child’s objections should only prevail in exceptional circumstances”.
The judge stated that when exercising discretion, it is important to avoid a too rigid
approach. Each case must turn on its own facts and the approach taken will depend
on the circumstances of the case.
B’s Views
Oral evidence was provided by B’s litigation friend and she said the following:
- B said she wanted to stay in England and to stay with her mother. She
wanted to spend the holidays with her father, but she said that she wanted to
live with her mother and did not want to return to Germany;
- She enjoyed her new school. She would like to study in English because it
would help her become a stewardess;
- She had bad memories in Germany related to the domestic violence between
her mother and second husband;
49
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
-
-
-
That the child’s objections strengthened the more that she spoke to B about
returning to Germany;
The child opposed to returning to Germany itself but she acknowledged that
the child’s apprehensions were linked to the circumstances that the child left
and her uncertainty of what would happen if she returned;
A very large part of the child’s thinking was that her mother had not been able
to protect herself or her children from her abusive husband in Germany and
that putting a distance between them would be the best way of getting
protection; and
The child had the capacity to reflect on various factors to her decision and
was not exaggerating her objection to strengthen her case.
The judge concluded that he was completely satisfied that B had a clear objection to
retuning to Germany and that she was of an age and maturity at which it was
appropriate to take account of her views.
R’s Views
The Court stated that it must bear in mind the child’s psychological test that showed
that the child was operating at roughly 18 months below his chronological age. It also
showed that intellectually he was at the low average level.
B’s litigation friend testified about R’s views. She said the following:
- He disliked his stepfather and did not feel safe in Germany. He did not want
to leave his mother and did not want her to return to Germany because he
was worried about her.
- He had been hit by his mother’s husband.
- He did not want to live with his father but would like to visit him on the
holidays
- He complained of bullying and of being at a German school which he did not
like.
- He wanted to stay with his mother and did not wish to return to Germany.
A CAFCASS officer was appointed for R. She stated the following about the child’s
50
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
views:
-
-
-
He discussed bullying at school.
He said that he would like to stay in England.
He was worried about ill treatment of his stepfather.
He liked school better in England because there were more school subjects
available and he liked the weather better.
He said that he “did not know” how he would feel if the court made an order
that he had to return to Germany, even if this meant that he did not have
contact with his step father or return to his old school.
He said that he did not have any worried about returning home without his
mother and sisters.
The CAFCASS officer stated that R had attained a degree of maturity
whereby it was appropriate to take into account his views.
She acknowledged that the child’s views were rooted in a need not to return
to a particular situation, rather than a country itself. Furthermore, he did not
categorically say what he would do if ordered to return and she though it
would be possible to persuade him with reassurance
She said that the child was conflicted and that his views should not be taken
as “objections” in Convention terms.
Discretion
The Court stated that the range of considerations arising in the exercise of discretion
may be wider when dealing with the child’s objections defence than other exceptions.
Some factors that could be considered are:
(a) The nature and strength of the child’s objections
(b) The extent to which they are authentically his/her own
(c) Whether on the other hand they are a product of influence of the abducting
parent
(d) The extent to which they coincide or are at odds with other relevant welfare
considerations
(e) The general considerations under the Convention, including the important
policy consideration underpinning it.
51
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
B’s Return
The Court stated that all factors pointed in favour of refusing to return B to Germany.
She had strong, clear, considered and consistent views that were authentically her
own. The Court sided with the mother’s lawyer who characterized them as rooted in
reality, appreciative of the advantages of life in England, and a sober assessment of
the damaging effect that domestic violence had on her life in German. The child was
right to feel that there was a real risk that domestic violence would return to her life if
she returned to Germany and she did not trust her mother’s capacity to protect her
and her siblings from violence.
R’s Objections
The judge stated that R’s objections seemed to be less clear, less strong and less
authentically his own. He said that he was not considering R’s objections in isolation
when exercising discretion. The judge stated that he would have to consider them
alongside of his findings with regard to B’s objections and his finding that a return to
Germany alone for R would place him in an intolerable situation.
The Court referred to Re D (Abduction: Rights of Custody) where Baroness Hale
pointed out that it was inconceivable that a court which reached the conclusion that
there was a grave risk that a child’s return would place him in an intolerable situation
would nevertheless return him to those circumstances. The judge stated that “Thus,
once a the court has made the finding that a return would place a child in an
intolerable situation, it is highly probable, indeed almost inevitable, that it will exercise
its discretion by refusing the return of the child. In this case, therefore, I conclude that
R cannot be returned alone. The ultimate question is whether I should order that both
B and R should return or exercise my discretion by refusing to return either of them”.
The court concluded that: “…these children should not be returned summarily to
Germany. The fact that returning R alone would place him in an intolerable situation,
coupled with both children’s objections- in B’s case strong clear, considered and
consistent objections which are congruent with many of her welfare interests, and
authentically her own; in R’s case less clear and strong, but nonetheless the
52
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
established objections of a child who, as his guardian submits, is of an age and level
of maturity at which such views should be taken into account- considered together
point clearly towards refusing return”.
The judge stated that in exercising his discretion, he had not forgotten about the very
important policy underlying the Hague Convention as well as general principles of
comity.
Re M.
(Children)
(Abduction:
Rights of
Custody)
[2007] UKHL
55
(House of
Lords)
The parties were married and had 2 daughters (13
and 10 at the time of the hearing) in Zimbabwe but
separated in 2001. Following separation, the
mother left the girls in the care of their father. In
2004, the mother returned to Zimbabwe where she
had periodic contact with the children.
In March 2005, the mother removed the children,
taking them to England via Africa. The mother
sought asylum when she entered England. The
mother’s application was refused but proceedings
challenging the decision continued and were
ongoing at the time of the Convention application.
In May 2007, the father applied for the return of the
children.
Appeal
allowed and
return order
refused.
Removal
was
wrongful but
the children
objected to
the return
and had
settled into
their new
environmen
t.
Significant
weight
Spirit of the Convention
The House of Lords stated the following about the Convention:
- The Hague Convention is a clear and simple instrument. Its twin objectives:
(1) to secure the prompt return of children wrongfully remove; and (2) to
ensure that the rights of custody and of access under the law of one
Contracting State is respected in other Contracting States (para. 11)
- The Convention is not principally concerned with the rights of adults. It is the
reverse. The interests of children are of paramount importance and there is a
desire to protect children internationally from the harmful effects of wrongful
removal (para. 12)
- The Court reviewed the various defences to a return order.
Exercise of Discretion
The Court stated that an additional test of exceptionality had may its way into the
exercise of the court’s discretion. However, the Court noted that it was wrong to
import any test of exceptionality into the exercise of discretion under the Hague
Convention- “The circumstances in which return may be refused are themselves
exceptions to the general rule. That in itself is sufficient exceptionality. It is neither
necessary nor desirable to import an additional gloss into the Convention (para. 40).
In June 2007, the High Court ordered the return of
the children. The court accepted that the girls
objected to going back and were of sufficient age
and maturity for their views to be considered. He
did not find that they had been coached in the
views that they had expressed to the CAFCASS
officer. He did bear in mind that the children were
living with their mother and her new partner who
did not wish to return and who were more likely
than not to have given the children negative views
The Court said that there was a distinction between the exercise of discretion under
the Hague Convention and the exercise of discretion in wrongful removal cases
outside of the Hague Convention. In non-convention cases, the child’s welfare may
be better served by a prompt return to the country from which she was wrongly
53
Case
Facts
Held
Weight
Given to
Child’s
Objection
about Zimbabwe. He also believed that the
children were settled in their new environment.
However, the trial judge exercised his discretion to
make a return order.
Important Statements & Reasoning
removed; but that will be because of the particular circumstances of the case
understood with reference to the general understanding of what harm the removal
can do (para. 41). In Convention cases, there are general policy considerations which
may be weighed against the interests of the child in the individual case. The policy
considerations include:
the swift return of the abducted child
- comity between contracting states and respect for one another’s judicial
process
- deter abduction in the first place (para. 42)
On September 2007, the mother’s appeal was
dismissed. The Court of Appeal found that the trial
judge had not erred in the exercise of discretion in
making a return order.
The Court went on to state that “…in cases where discretion arises from the terms of
the Convention itself, it seems to me that the discretion is at large. The Court is
entitled to take into account the various aspects of the Convention policy, alongside
the circumstances which gave the court discretion in the first place and the wider
considerations of the child’s rights and welfare”. The Court went on to state that
sometimes the Convention objectives should be given more weight than other
considerations, and sometimes they should not (para. 43).
The mother was granted leave to appeal to the
House of Lords.
Child Objections
“In child objection cases, the range of consideration may be even wider than those in
the other exceptions. The exception itself is brought into play when only two
conditions are met: first, that the child herself objects to being returned, and second,
that she has attained an age and degree of maturity at which it is appropriate to take
account of her views. These days, and especially in light of article 12 of the United
Nations Convention on the Rights of the Child, courts increasingly consider it
appropriate to take account of a child’s views. Taking account does not mean those
views are always determinative or even presumptively so. Once the discretion comes
into play, the court may have to consider the nature and strength of the child’s
objections, the extent to which they are other considerations which are relevant to her
welfare, as well as the general Convention consideration referred to earlier. The older
the child, the greater weight that her objections are likely to carry. But that is far from
saying that the child’s objections should only prevail in the most exceptional
circumstances” (Para. 46).
54
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The House of Lords disagreed with the Court of Appeal. They felt that the trial judge
was using the term “exceptional” as a test to be applied in the use of his discretion,
and was not simply using the term to describe the overall characteristics of a case in
which it would be appropriate to refuse a return (para. 49).
Having found that the trial judge had erred in the exercise of discretion for having
applied too restrictive a test to the exercise of his discretion, the House of Lords
considered how the discretion should be exercised. Baroness Hale considered the
issue of settlement from the perspective of the children, and noted that they felt
integrated into their new environment and wanted to remain there (para. 52). Another
issue was the uncertainty and volatility of Zimbabwe (para. 53). She held that against
these factors the policy of the Convention could carry little weight and the children
should not be made to suffer for the sake of deterrence of child abduction (para. 54).
The mother’s appeal was allowed and the return of the children refused.
The Court made additional comments about child objection cases (para. 57):
- It is for the court to consider at the outset how best to give effect to the
obligation to hear the child’s views.
- The views of children are routinely obtained by the specialist CAFCASS
officers at the Royal Courts of Justice
- Children must not be given an exaggerated impression of the relevance and
importance of their views in child abduction cases. To order separate
representation in all cases, might be to send them the wrong message.
- Separate representation would not send the wrong message if used in a small
number of cases where settlement is argued also, under 12 (b). These are
the cases where the separate point of view of the children are important and
should not be lost by the competing claims of adults.
- Otherwise, the question for judges regarding separate representation for
children is whether it will add to the court’s understanding of the issues under
the Convention to justify the intrusion, expense and delay that may result. The
Court stated that it had “no difficulty predicting that in the general rule of
cases it will not”.
55
Case
Facts
Held
Klentzeris v.
Klentzeris,
[2007] EWCA
Civ 533
The father was Greek and the mother was English.
The parents married in the UK and had three
children, all born in the UK (age 20, 12 and 10 at
the time of the proceedings). During the marriage,
the father was required to relocate to Greece for
work. The mother eventually went with the two
youngest children to join him there. There was an
episode of serious violence on the mother and
various other occasions of low level physical
abuse by the father.
Appeal
dismissed
and return
refused- the
removal
was
wrongful by
the trial
judge had
been
correct to
find a grave
risk of
psychologic
al harm if
the child
returned
(Court of
Appeal)
The eldest child, Danielle, visited the family for
Christmas in 2006 and took the two younger
children from Greece without the knowledge or
consent of the father. The following day, the
mother took a flight home to England. The father
immediately issued proceedings for divorce and
brought an application for the return of the
children.
A judge gave directions for a CAFCASS officer to
interview Demi and Robert and to provide a report
on the children’s objections to returning to Greece
and whether they had attained the age/maturity at
which it was appropriate to take into account their
views. The judge also directed the officer to be at
the trial.
Weight
Given to
Child’s
Objection
No weight
(not
because
the defence
could not
be made
out but
because
the case
was
decided on
other
grounds,
mainly the
finding of a
grave
psychologic
al harm if
the children
were
returned)
Child’s Objections
At trial, the CAFCASS officer testified and stated
the following:
- Robert became extremely distressed and
cried during the meeting. When describing
56
Important Statements & Reasoning
The Court stated that there was no evidence that the trial judge did not appreciate his
obligations in the context of the Convention and in the context of the Brussels
Regulation II Revised, to order the return of the children who had been removed from
their habitual residence (para. 21).
Child Objections
The Court of Appeal stated that the case of the children’s objections was
exceptionally strong, given that the messages came from an experienced welfare
officer (para. 22). However, the Court of Appeal stated that the trial judge did not
reach a view on the Article 13(2) exception (para. 22). Thorpe L.J. noted that the
case was an extremely strong one (as stated above at para. 22). Wall L.J. held that
he would have found the defence to have been made out (para. 36).
Case
Facts
-
-
Held
Weight
Given to
Child’s
Objection
his father and the violence against the
mother, he had a panic attack.
Robert said that he would kill himself if he
had to return to Greece.
The daughter, Demi, repeated the
experiences of her brother and had the
same views.
The children expressed strong objections
to returning to Greece
The CAFCASS report stated the following:
- The children were emotionally damaged
from their experiences in Greece. They
had experienced domestic violence and
were physically/emotionally abused
themselves
- Both children were intelligent, articulate
and sensitive. Demi had a maturity beyond
her chronological age; Robert’s maturity
was on par with his age.
- The children would be
psychologically/emotionally damaged if
they returned to Greece and the mother
accompanying them would not ameliorate
the damage.
After looking through the father’s evidence, the
following occurred:
- It was noted that the photographs of the
family’s flat in Greece was very different in
style and extent to the children’s
description to the CAFCASS officer;
- The CAFCASS officer agreed that she may
have perhaps expressed herself more
57
Important Statements & Reasoning
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
extensively or less strongly in her written
report if she had the father’s materials;
however, she did not depart from her
findings or recommendations.
In April 2006, the High Court declined to make a
return order finding that the Article 13(1)(b)
exception had been made out, on the basis that
the children would face a grave risk of
psychological harm if returned.
The father appealed.
Re M. (A
Child)
(Abduction:
Child’s
Objections to
Return),
[2007] EWCA
Civ 260
The parents were never married but cohabited for
a number of years and after the child’s birth moved
to Serbia. The parties separated and the mother
claimed that the parting was against a background
of violence and personal abuse by the father.
Following separation, the Belgrade City Centre of
Social Work granted custody of the child to the
mother with access to the father.
(Court of
Appeal, Civil
Division)
In August 205, the mother took the child to
England and the father was awarded interim
custody by a Serbian court. The father began
proceedings in the High Court of England for the
return of the child. In January 2006, the mother
consented to a return order being made and then
changed her mind and invited the court to hear the
views of the child, then 7. The child was
interviewed by a court welfare officer, but in
February 2006, the Court declined to amend or
recall the consent order. The interim custody order
in favour of the father in Serbia was successfully
Appeal
allowed;
return
refused
Significant
weight
Child Objections
The Court of Appeal stated that the trial judge had overlooked, and failed in his
judgment to deal with, the defence based on M’s objections to the return (para. 3).
Because this was not addressed, the Court of Appeal should assess the defence
(para. 63).
At paragraph 58, the Court reviewed the principles to be applied by the court in
considering a child’s objections. The court quoted the principles set out in S (a Minor)
(Abduction: Custody Rights) [1993] Fam 242 where Balcombe LJ stated:
(a) “The scheme of the Hague Convention is that, in normal
Circumstances, it is considered to be in the best interests of children
generally that they should be promptly returned to the country whence
they have been wrongfully removed, and that it is only in exceptional
cases that the court should have a discretion to refuse to order an
immediate return. That discretion must be exercised in the context of the
approach of the Convention.; and
(b) Thus if the court should come to the conclusion that the child’s
views have been influenced by some other person, e.g. the abducting
parent, or that the objection to return is because of a wish to remain with
58
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
appealed by the mother. She then applied to
remove the child and the proceedings were
adjourned.
the abducting parent, then it is probable that little or no weight will be
given to those views. Any other approach would be to drive a coach and
horses through the primary scheme of the Hague Convention”.
Between May to July 2006, the police searched
the mother’s car on several occasions and
discovered drugs. The mother was arrested and
the child witnessed these events. The court later
determined the Serbian police were setting up the
mother to incriminate her.
The Court assessed the child objection defence on the basis of the evidence before
the trial judge and stated that it would take the evidence of the CAFCASS worker at
face value given that the judge expressed no criticism of her account (para. 63).
The Court stated that the mother’s influence “may well be so” but on the basis of the
evidence before the trial judge, it was clear that M expressed strong objections to
returning to Serbia. While they were based in part on wanting to be with her mother
and to not return to her father, her objections were based, in large measure, on her
experiences with the police and a fear of similar incidents occurring when she
returned. M had an understandable fear of further involvement by the Serbian police
and fear of being parted from her mother (para. 71).
In October 2006, the mother again took the child to
England.
Child’s Objections
On the child’s age and maturity, the Court stated that “It seems clear to me, from the
evidence of both CAFCASS officers that M is a bright 8 year old well able to
understand and assimilate questions which were put to her and give them considered
answers. In my view her age and maturity are such that her clearly voiced objections
require to be taken account by the court” (para. 76).
The CAFCASS officers report offered the following
evidence about the child’s objectives prior to trial:
- M did not want to go back to Serbia
because her father “Was always hitting
mommy” and that she had seen him do so
- M was a very bright child who described
what she saw and not simply what she was
told
- Her maturity was commensurate with an 8
year old
- Belgrade was scary for M. If she went back
she would be scared that her father would
not do as he said he would.
- The child had very negative associations
with Serbia and her father. Her anxiety was
largely connected to fears about her
mother’s safety and the threat that she
would become separated from her.
The Court found that the child’s objections to returning to Serbia were strong. While
they were based on her wish to stay with her mother and not to return to her father,
they were also based on her experiences of the Serbian police and her fear that such
events might be repeated if they returned and that she would be separated from her
mother (para. 76 ad 77)
With regard to undue influence, the court stated that it would not be surprised if the
child’s views had been influenced by the mother, given that the atmosphere the child
had been living in and the fact that the mother was hostile to the father (para. 78).
The court did not give weight to the father’s suggestions of undue influence.
The Court found that the child had a valid reason for her rejection to her return (para.
59
Case
Facts
-
Held
Weight
Given to
Child’s
Objection
She did not feel that M had been
influenced by her mother
Important Statements & Reasoning
79).
Discretion
A specialist team working with children from
problem families reported to the Court on the
father’s application for custody the following:
- The father was authoritative, dominant and
controlling
- M identified with her mother, disturbed and
had conflict of loyalties towards her father
and mother
- The father phoned M 5 or 6 times a day to
see where she was and what she was
doing, which disturbed her daily routine
The Court stated that its last consideration would be whether M’s objection was one
of the ‘exceptional’ cases justifying the court’s use of discretion to refuse to order the
return. The Court stated that it must balance the nature and strength of M’s
objections against the Convention considerations (comity and respect for judicial
processes in Serbia and the policy behind the convention) and general welfare
considerations (para. 80).
The Court stated that:
- M’s objections were undoubtedly strong and exceptional in the unusual
circumstances underlying the strength of the objections (namely a campaign
by someone to plant drugs on the mother, to harass her and to secure her
imprisonment)
- Convention considerations were also significant. They carried extra weight in
a case where the mother had removed the child while engaged in foreign
custody proceedings. There was no reason to question the integrity of the
proceedings in Serbia.
- The general welfare considerations in the case militated strongly in favour of
refusing an order. The child is frightened for her mother’s safety based on her
experiences in Serbia (para. 82).
The father claimed that M’s objections should be
attributed to influence by the mother who kept the
child informed about court proceedings and
coached her.
The trial judge looked at various matters raised by
the mother such as the threats, hostility and
intimidation of the father relating to risk of harm of
the child, M. The judge took the view that he could
not resolve them on application and that they were
matters for the Serbian Court. On the basis of a
number of protective undertakings offered by the
father, the trial judge ordered the return of M to
Serbia.
“To send her back now will be to consign her to continued fear and uncertainty and
further distress. In my view, this is an exceptional case which merits refusal of an
order for immediate return and I would allow this appeal on that ground” (para. 83).
The mother appealed.
Re F.
(Abduction:
Following a turbulent relationship with the Spanish
father, the English mother left the matrimonial
The appeal
was allowed
Significant
weight
60
Child Objections
Case
Facts
Held
Child’s
Wishes)
[2007] EWCA
Civ 468
home in Spain with the child (age 7 at the time of
the appeal) and moved nearby to the home. It was
agreed between the parents that the mother and
child would have Christmas with the maternal
grandmother in England and would return to Spain
on January 9, 2006. The mother returned alone
and the child remained with her grandmother in
England.
and the
case was
remitted for
further
consideratio
n by the
judge on
the issues
(Court of
Appeal)
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The Court of Appeal stated that what was unusual, even exceptional, about this case
was that at all stages leading up to trial no one, practitioners or judgers, focused on
the mother’s defence that the child objected to the return. There was no review of J.’s
wishes and feelings, “which is the ordinary interpretation of the court’s obligation to
‘hear the child’” (para. 16). It was noted that there was a requirement under 11(2) of
the Brussels II a Regulation (Counsel Regulation) that the child be heard.
Referring to the court’s failure to hear the child’s objections, the Court of Appeal
stated that “It is a fundamental deficiency and it cannot be shored up or papered
over” (para. 19).
The father delayed bringing an application for the
return of the child. During that period of delay the
mother had a psychological breakdown and
returned to England to care for the child.
The Court of Appeal reviewed the child’s objections. The child was interviewed by a
lawyer who prepared for leave to intervene (and was unsuccessful) and the court
noted the following:
- The child’s expressed anxieties were natural and not hard to predict, given
the extent of the mother’s determination to resist return and given the
likelihood that she had communicated, directly or indirectly, the strength of
her determination to her daughter (para. 20).
The father’s application for the return of the child
was heard in December 2006. It was conceded
that the father had rights of custody and that the
retention had been wrongful. The mother’s
defences- acquiescence under article 13(a) and
the grave risk of physical or psychological harm to
the child in the event of return, and/or the
intolerability of the situation to which she would
return under Article 13(b)- were rejected by Justice
Macur. The judge did not order an immediate
return but required he father to obtain a mirror
order in Spain to trigger the return. Although the
mother claimed that the child objected to the
return, there was no inquiry into the child’s wishes
and feelings.
The Court of Appeal held that it was clear that Article 11(2) of the Brussels II a
Regulation could not be overridden by the obligation in Article 11(3) for cases to be
dealt with within 6 weeks. The Court also stated that the child’s objections should be
dealt with at the first directions appointment so that the issue is not forgotten (para.
24).
The mother appealed.
Re D. (A
Child)
The application related to a boy born in Romania.
The parents were divorced and the mother was
Appeal
allowed and
Moderate
considerati
61
The child’s objections were not determinative, they were considered by many of the
judges of the House of Lords
Case
(Abduction:
Rights of
Custody)
[2006] UKHL
51
(House of
Lords)
Facts
granted primary care of the child. In the fall of
2002, the mother moved to England, got married
and commenced studies. The child remained in
Romania and was cared for by the maternal
grandparents.
In December 2002, the mother removed the child
from Romania and took him to England. The father
initiated a return application in February 2003.
The wrongfulness of the removal was contested
and the Court ordered that an Article 15
declaration be sought from the Romanian
authorities. In May 2004, a Romanian court of first
instance found that the father only had rights of
access. The father appealed. The trial court’s
decision was reaffirmed.
In March 2006, the High Court ordered the return
of the boy to Romania. In May 2006, this decision
was upheld by the Court of Appeal. The mother
was subsequently granted leave to appeal and the
child was granted leave to intervene and to be
separately represented.
Held
application
dismissed.
The inferior
courts had
erred in
rejecting the
determinati
on of the
Romanian
courts
pursuant to
Article 15.
Under
Romanian
law, the
father had
no rights of
custody for
Convention
purposes
and
therefore
the removal
was
wrongful.
Weight
Given to
Child’s
Objection
on
(considered
but not a
deciding
factor)
Important Statements & Reasoning
Baroness Hale of Richmond:
The judge noted that there was evidence from both the CAFCASS officer who
interviewed the child and the solicitor who represented him, that the child was
adamantly opposed to returning to Romania. However, no defence based on the
child’s objection was raised until the case reached the House of Lords (para. 57).
The child was only 41/2 when the proceedings began and at that age few courts
would have considered the child to have attained the age and maturity at which it is
appropriate to take into account his views. Baroness Hale noted that the child was
now 8 and stated the following (para. 57):
- There is a large difference between taking account of a child’s views and
doing what he wants;
- The relevance of a child’s views to the issues of a case may be limited.
- There is a growing understanding of the importance of listening to the children
involved in children’s cases. It is the child who will have to live with what the
court decides.
- Those who listen to children understand that they often have a point of view
that is different from the view of the person looking after them
The judge noted that Article 11.2 of the Brussels II Revised Regulations (EC) No
2201/2003 requires that the child is given the opportunity to be heard during the
proceedings unless it appears that it is not appropriate because of their age or level
of maturity. The Baroness stated that this strictly applied to cases within the EU but
she felt that it should be of universal application and was consistent with the
international obligations under article 12 of the U.N. Convention on the Rights of the
Child. In particular, “It applies, not only when a ‘defence’ under article 13 has been
raised, but also in any case in which the court is being asked to apply Article 12 and
direct the summary return of the child- in effect every Hague Convention case. It
erects a presumption that the child will be heard unless this appears inappropriate.
Hearing the child is, as already stated, not be confused with giving effect to his views”
(para. 58).
62
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The Baroness went on to state that children should be heard far more frequently in
Hague Convention cases than has been the practice. But how should it be done? It is
not good enough to state that the parent can present the views to the court. If they
coincide with the views of the abducting parent, the court will assume they are not
authentically the child’s own views or will give them little independent weight. There
has to be a means to convey them to the court independently of the parent (para. 59).
The Baroness noted three ways of doing this (para. 60):
(1) The judge can see the child (as is the case in Germany);
(2) Through a court welfare officer (as in England, where the CAFCASS officer is
not only skilled and experienced in talking to children, but also aware of the
limited relevance of children’s views in Hague Convention cases). “In most
cases this should be enough”.
(3) Full-scale legal representation (only necessary in a few cases)
She went on to say that the English courts only allowed separate representation in
exceptional circumstances. She noted the contradiction of the view expressed in Re
H (A Child) [2006] EWXA Civ 1247, where the Court of Appeal stated that the Courts
should be more stringent to add parties, versus the Brussels II Revised Regulations,
where European courts are required to address at the outset whether and how the
child is to be given the opportunity to be heard (para,. 61). She held that delay should
not be an issue if the child’s views were sought at the outset of the proceedings and
added that there was no reason why this approach followed in EU cases should not
be applied in all Hague cases (para. 61).
Lord Carswell
The judge stated that he would not reverse the decision of the lower courts to refuse
the child representation. Care should be taken when considering the weight to be
given to the views of a seven year old child, since the child may have limited insights
into his own best interests. However, he agreed with Baroness Hale that the court
should take into account the factors favouring hearing the views of the child (para.
75).
63
Case
Re H. (A
Child: Child
Abduction)
[2006] EWCA
Civ 1247
(Court of
Appeal)
Facts
The application related to the parties daughter,
aged 15.
The parties were married and divorced in
Zimbabwe. Following the divorce, beginning in
2002, the girl lived in South Africa with her mother.
The child had regular contact with her father who
lived in England (over the holidays). During Easter
2006, the child travelled to England but she
refused to return at the end of her stay. The
mother then issued return proceedings. Prior to the
trial of the return application, the girl applied to be
a joint party to the proceedings.
The judge at first instance (the deputy judge)
considered the application and concluded that it
was imperative for M’s views to be considered.
Having reviewed the English authorities, he
concluded that there were no compelling grounds
to justify the child’s separate representation.
Held
Weight
Given to
Child’s
Objection
Appeal
dismissed
and case
remitted to
High Court
for
judgment;
only in
exceptional
cases
would a
child be
afforded
separate
representati
on in Hague
Convention
cases
Important Statements & Reasoning
Grounds of Appeal
On appeal, it was argued that the judge at first appearance had erred in his exercise
of discretion by concluding that the case was not exceptional. This was a “Child
inspired retention”. M’s grounds for rejecting her settled home, her South African
environment, her mother, were none of the father’s doing and only she had
knowledge of the fact and circumstances in South African to explain her decision
(para. 8).
Second, it was submitted that the existing exceptional circumstances should be
abandoned, given the greater freedom now granted for children’s participation in legal
proceedings (para. 9).
Thorpe
The Court of Appeal was critical of the reports submitted by the child’s counsel. One
was a report from a clinical psychologist whose methods of intervention were
observation. The Court questioned the psychologist’s lack of consideration for the
confidentiality between her and the child. The second report was from a private social
worker who had never met M and was instructed to prepare a report only after M had
rejected the parental arrangements for her return (para. 10).
The Court of Appeal stated the following about the trial judge and his decision (para
14):
- The judge below was correct for the reasons he gave.
- His judgment was extremely clear an careful
- They rejected the suggestions that the exceptional circumstances test should
be relaxed in any way
The Court of Appeal stated that it reviewed the reported cases where a child was
granted separate representation and the common threat was that most, if not all, of
those cases had a public law dimension (i.e. it was brought under a European
regulation, para. 15).
64
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The Court noted that there was a material difference between the question of
separate representation or a child in a substantive welfare enquiry and in child
abduction proceedings which were to be summary in nature. The obligation under the
European Regulation (Brussels II) was that abduction cases should be dealt with
within 6 weeks (para. 16 and 17). The Court of Appeal suggested that the test for
party status should be made more restrictive to ensure adherence to the deadlines
pertaining to intra-European abduction cases under the Brussels II Regulations (para
16 to 18).
Wall
Wall agreed that the appeal should be dismissed but wanted to make note of his
views.
Wall said that it was important to remember that the Court was not adjudicating the
merits of M’s case under Article 3. What the Court was deciding was how M’s voice
could properly be heard in the proceedings so that her Article 13 defence could
properly be resolved (para. 24).
Wall asked if the child required separate representation for her voice to properly be
heard. He concluded that she did not. The procedure under the Hague Convention is
summary (para. 25).
Wall went on to state that the only unusual feature of this case was that M was 15,
and only a little below the threshold where the convention would cease to apply. But,
that fact should not go to the question of her representation, but to the merit of her
defence. Another unusual feature of the case was that the father argued that because
he had not lived in the same household as M for some time, he was unaware of the
factors that were motivating M’s unwillingness to return to South Africa. Wall found
this submission difficult to accept but did not find it a compelling argument for
separate representation (para. 28).
Wall stated that M’s objection under article 13 had to come from “M herself”. She had
done it with a CAFCASS officer and if necessary, she could do it again. Alternatively,
65
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
she could put it in a statement which the judge will read. It was evident that M did not
want to be engaged in the proceedings as she specifically said that she does not
want to be in court; however, she wanted her views to be before the judge and to be
taken into account by the judge. (para. 29). “In my judgment, she does not need
separate representation for that to be achieved” (para. 30).
Wall also noted that he was worried about a potential “floodgate” scenario, whereby,
if M was granted representation in this case, where, there was effectively no
exceptional circumstances, it would be difficult to refuse separate representation for
other 14 or 15 year olds who were the subject of an application under the Convention
and who wished to be joined as parties (para. 33).
Vigreux v.
Michel, [2006]
EWCA Civ 630
(Court of
Appeal)
The child, a boy, was removed from France to
England in August 2005, on the day of his 14th
birthday. The parents, who were never married,
were separated. The parents and their son were
French.
In June 2002, a French court made an order for
joint parental responsibility with the mother having
primary residence. The father appealed this order,
but relocated to England in October 2003 prior to
the hearing and the appeal was dismissed. After,
he had intermittent contact with the child.
In 2005, the father and son jointly issued an
application for the variation of the 2002 French
court order, however prior to the hearing they went
to England. In particular, the father went to Paris
for an agreed period of contact. In reality, he and
Pierre—Mathieu (the son) had pre-planned an
escape to England. The mother contacted the
French Central Authority in August 2005 and her
return application was issued.
Appeal
allowed and
return
ordered.
The trial
judge had
erred in
exercising
his
discretion
after having
found that
the Article
13(2)
exception
had been
made out.
Little
weight
Grounds of Appeal
The mother argued that the trial judge had erred in the exercise of his discretion, in
that he failed to give sufficient weight to the French court process. It was further
suggested that under the new child abduction regime applicable within the European
Community since March 1 2005 that there was now a stronger presumption that
abducted children should be returned (para. 20).
Thorpe
(Note: Justice Thorpe reviewed the Brussels II Regulation and noted that the
supremacy of the Brussels II Regulation over the Hague Convention came from
article 60.)
With regard to the trial judge’s decision, Thorpe stated that too much weight had
been placed on the child’s concern that he would not receive a fair hearing in any
subsequent proceedings in France. Further, the judge took into account welfare
decisions (re: the child’s education and disruption issues) which are precisely the sort
of considerations that Article 11(3) of the Brussels Regulation is designed to eliminate
from the account (para. 33). The trial judge should have simply weighed only the
nature and strengths of the child’s objection against the policy of the Regulation and
the fact that the essential welfare investigations and decisions must be taken in
66
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
France (para. 35).
In February 2006, the application reached the High
Court who found that the child objected to his
return and that he was of sufficient age and
maturity for his views to be taken into account. The
trial judge then exercised discretion not to order
the return of the boy.
With regard to the Brussels II regulation, Thorpe did not accept that the European
Community regime had imposed a heavier burden on abductors seeking to invoke
one of the exceptions. However, he did accept that the policy behind the Regulation
was clear and affirmed that Member State should not undermine the intended effect.
The purpose of the regulation was threefold: the emphasis of protective measures to
nullify an Article 13(b) defence; the return of the case to the requesting state in the
event of a refusal by the requested state and automatic enforcement of return orders
throughout the region. “The policy that underlies these provisions is clear and it is
important that states bound by the Regulation do not undermine its intended effect
either in its interpretation or in its application in accordance with the stringent time
lines stipulated” (para. 37).
The trial judge noted the following:
- The child told a psychologist that he would
be sad if he returned to France because he
would lose contact with his father. He also
stated that if he were returned to France,
he would return to the UK when he turned
16.
- He objected to France- he was
unimpressed with the lack of involvement
that he had as a young person in the
French process. He did not expect that he
would have a fair hearing if his case was
dealt with in France. He was concerned
that his father would not take part in the
process because his father was reluctant
to go to France in view of the prison
sentence that was hanging over him.
Lord Justice Wall
Wall agreed that the appeal raised important issues of principle and practice in
relation to cases under the 1980 Hague Convention on International Child Abduction
to which Council Regulation (EC) No 2201/2003 (Brussels Revised II) applied. This
was a case in which the policy of the Hague Convention, buttressed by Brussels II
Revised, powerfully outweighed the fact that the Article 13 defence raised by the child
was made out (para. 49).
Wall concluded that this was a strong case under Article 13(2): the child was older
(almost 15), he had strong feelings and was found to be very mature. He was able to
separate his views from his father and to disagree both outside and within his father’s
presence (para. 67). However, Wall noted that there were factors which pointed
strongly to the need to uphold the policy of the Convention including that: the father
refused to take part in the French proceedings and that he had convinced the child
that he would not receive a fair hearing in France (para. 69)
After weighing the issues, the trial judge concluded
that: “I am satisfied in this case that Pierre's
wishes and feelings should prevail. I am impressed
by the mature manner in which he has conducted
himself as a party to these proceedings, and
indeed during the hearing. That stance and what
he says about what he wants and what he feels
deserves respect and requires the court to give
Wall believed that the trial judge was plainly wrong to give weight to the child’s
misperception that he would not receive a fair hearing in France. Not only would he
receive such a hearing, but he would be entitled to be represented in these
67
Case
Facts
Held
Weight
Given to
Child’s
Objection
that aspect of the case considerable weight so
that, allied with the education and disruption
issues, it outweighs on this occasion the policy of
the Convention. The balance therefore comes
down in favour of a refusal of the mother's
application for a return to France.
Important Statements & Reasoning
proceedings by the lawyer of his choice (paras. 70 to 72). Further, the trial judge had
neglected to consider that the child might be allowed to relocate following the French
proceedings. Given all of the facts of the case, no welfare considerations justified the
child not going back (para. 75).
On April 2006, the mother was granted leave to
appeal to the Court of Appeal.
Zaffino v.
Zaffino
(Abduction:
Children’s
Views) [2005]
EWCA Civ
1012
The parents married and had 6 children (ages 14,
13, 11, 10, 7, and 5) at the date of their removal
from Canada to England. The mother began
exploring the possibility of moving to the UK in
2004 and had spent time there. During one visit,
she commenced a relationship with a man whom
she continued to cohabitate with.
(Court of
Appeal, Civil
Division)
In the fall of 2004, the mother issued proceedings
in the Superior Court of Justice, Ontario for leave
to remove 4 of the children to the UK. However,
prior to the resolution of these proceedings, she
moved the children to the UK. The father initiated
return proceedings.
In May 2005, during trial, a CAFCASS gave oral
evidence about his interview with two children,
Melissa (13) and Juliano (10). His evidence
indicated that the children objected to being
returned and had attained an age and degree of
maturity at which it was appropriate for the Court
to take into account their views. The High Court
found that the 13(2) defence has been made but
exercised his discretion to refuse the return. The
Appeal
allowed and
return
ordered.
The Court
of Appeal
ruled that
the
objections
of the two
older
children
should not
have led to
an order of
non-return.
The trial
judge had
erred in the
matter that
he
exercised
his
discretion
Moderate
Grounds of Appeal
The father’s lawyer argued that the judge was entitled to find that the children’s views
should be taken into account because of the children’s ages and maturities. However,
the judge was wrong in the way he exercised his discretion for a number of reasons:
(1) the judge had given insufficient weight to the spirit and purpose of the Convention
and to the forum of conveniens claim of the Superior Court in Ontario; (2) the judge
had given insufficient weight to the consideration that the abducting parent should not
be permitted to create a situation which makes it possible to raise an Article 13
defence; (3) in ignoring the spirit of the Convention, the judge was wrong in the case,
given the existence of six children, the possibility of cross-applications and the priority
that should be given to the well-advanced proceedings in the Canadian jurisdiction.
JUSTICE THORPE
Thorpe offered the Husband some additional submissions, as follows:
(1) This was the “plainest case of a parent diverting from the essential application
to the court for permission to relocate in order to achieve her desired goals by
unlawful means”. The Court should not validate this behaviour (only if the
case is exceptional) (at para. 10).
The Court noted how the file was proceeding in Ontario and that the
mother felt that the Children`s Lawyer who had been appointed for
the children was biased against her. Thorpe inferred that this was her
68
Case
Facts
Held
High Court ruled that the two youngest children
should be sent back, but that their two older
siblings should remain since they had objected to
a return and were of sufficient age and maturity to
have their objections taken into account. The
father appealed.
once he
found the
13(2)
exception to
have been
made out.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
reason for taking flight (para. 10).
(2) The judge had potentially reasoned the return of Juliano on the ground that
he should not be separated from Melissa, whose return the judge had already
refused.
(3) The judge may not have sufficiently focused on the welfare considerations of
the children. In particular, the return of the younger two children was
conceded on the basis that the mother would go with them. What would
happen to the older two children?
(4) The exercise of discretion
- The trial judge had relied on previous Court of Appeal case law which
indicated that where the objections of a child were accepted, they should
be acted upon unless there were countervailing factors (paras. 13 to 15).
- Thorpe went on to contrast these Court of Appeal cases to alternate
authorities, as support for the view that in the exercise of discretion arising
under Article 13, the Court must rather balance the nature and strength of
the child’s objections against both the Convention considerations and
general welfare considerations (para. 19).
Thorpe concluded that:
- The trial judge misdirected himself as to the proper approach and the refusal
of return orders for the two older children could not stand (para. 20).
- He erred by failing to record the nature of the mother’s pending application in
Ontario and to identify the danger of her flight from judicial assessment (para.
20).
- The judge wrongly concluded the outcome for Juliano on the back of his
decision to endorse Melissa’s removal. The judge should have started from
the concession that the two youngest children were returning to their mother,
and then to address Juliano’s objections in light of that (para. 21).
- The trial judge improperly elevated the importance of the younger child’s,
Juliano’s, objections (para. 22). The CAFCASS officer had indicated that
Juliano’s examples of what offended him about his father’s conduct were
“quite minor things”.
- The trial judge did not consider the prospects for the older children that would
be separated from the rest of the family.
69
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Justice Wall
Justice Wall agreed that the appeal should be allowed and the judge’s order set aside
(para. 27).
Justice Wall agreed with Justice Thorpe, that the trial judge had erred by treating
each child in isolation. Rather than assess if the defence was made out and then
exercise discretion for each child, the judge should have first considered whether or
not the gateway to discretion was open in relation to each child. Only if it was could
he then go to exercise discretion appropriately (para. 34).
Justice Wall felt that the evidence did not establish the Article 13 child objection
threshold. The complaints made by Juliano were minor. Juliano simply wanted to be
with his mother and his youngest siblings but had no real idea of how different life
might be in England and what preferences he might have about other ways of life.
The interview was conducted while the case was immediately pending and was
limited (para. 36). Because the Article 13 defence was not made out, the discretion to
refuse Juliano did not arise (para. 37). If that conclusion was correct, according to
Justice Wall, this would have meant that Melissa should return. Melissa could not be
left alone while the mother returned to Canada with Juliano (para. 38). “Accordingly,
in my judgment, had the judge approached the matter in the way I suggest he should
have done, it might well have been that he would not have exercised his discretion in
favour of returning Melissa” (para. 39).
However, Justice Wall noted that the father did not challenge the finding that Juliano
had met the 13(2) defence, and therefore he had to consider the appeal on the basis
of the exercise of judicial discretion. Justice Wall stated the following:
- Canada was the right forum to hear the case. When the child’s views are
compared to the principles of the Convention, the Convention principles
outweighed their views substantially (para. 40).
- The judge made a decision which the mother identified as an arrangement
that would be harmful to the children. In particular, the mother was worried
about the effect of splitting up the children (para. 41).
70
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
-
The exercise of discretion must include consideration of the consequences of
its exercise. As the trial judge’s order currently stands, the two children to be
left in England with a stranger while the mother takes their siblings back to
Canada. This result is wrong (para. 42).
Lord Justice Neuberger
Justice Neuberger was not prepared to hold that the judge had erred with regard to
whether Juliano got through the gateway, as to balancing exercises or by considering
the position of Melissa first and then the position of Juliano (para. 52).
He went on to question the validity of the children’s defence. Melissa claimed that she
wanted to be with her mother and that she would suffer from the father’s “bullying
influence”. According to Justice Neuberger, Melissa could be protected from this by
the Canadian courts. He also stated that Juliano’s objections to the return were much
weaker (paras. 55 and 56).
In allowing the appeal, Neuberger focused on the fact that the essence of the older
child’s case which was to be with her younger siblings and mother could only be
achieved by returning since the mother had already accepted that she would have to
go back as there was no exception applicable to the youngest two children who had
been wrongfully removed (para. 56).
Re J
(Children)
(Abduction:
Child’s
Objections to
Return) [2004]
EWCA Civ 428
(Court of
Appeal, Civil
Divison)
The case related to two boys born to a Croatian
father and English mother. The family lived
together in Croatia. The parties’ relationship
became strained in 1999 and in June 2000, the
mother unilaterally moved with the boys to
England, when they were aged 9 and 5.
The father issued return proceedings, which led to
an agreed return by the mother. The father made
significant undertakings that he would not harm the
mother or the children and he would not take the
Appeal
allowed and
return
refused.
The child
was of
sufficient
age and
maturity for
his
objections
Strong
Interview with a CAFCASS Reporting Officer (Before Trial)
Both children interviewed with the CAFCASS officer before trial.
The CAFCASS officer offered the following evidence:
Child “S”:
- S was generally happy in Croatia. He had a half-sister and grandparents
whom he loved and missed (para. 37).
- S did not enjoy school in Croatia because he found the work difficult. He
enjoyed school in England more because the lessons were taught at a slower
71
Case
Facts
Held
children from the mother’s care upon their return.
In August 2000, the mother and child returned and
the father immediately breached the undertakings.
to be taken
into
account.
The
younger
child should
not be
separated
from his
older
sibling.
In November 2000, a court of first instance ruled
that he father have custody and the mother
access. In February 2001, this decision was
overturned. The father appealed but it was
dismissed.
In December 2001, the mother took the boys to
England for a second time. In March 2002, the
father issued new proceedings. The children were
interviewed by a welfare officer in May 2002.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
-
-
-
In October 2002, the High Court ordered the return
of the children. As to the objections of the older
child, the trial judge noted that he did not have a
real objection to a return to Croatia in the mother’s
care. In December 2002, the mother’s application
for leave to appeal the return was dismissed.
-
pace (para. 38).
S said that he loved and missed his father. He would like to see him and
speak to him more often. He hoped that his father would visit him more often
in England. S said that his father always asks him if he would prefer to live in
Croatia, and he usually says yes, but only to avoid upsetting him. S also said
that his father had been violent to him, but in most cases the violence was
against his mother, which he witnessed. However, S seemed eager to point
out that he was not estranged from his father (para. 39).
The child said that he could not imagine living anywhere without his mother.
He said that he wanted to live in England with her. He described her as being
able to listen to his problems and be there for him when he is upset. He
indicated that his mother was the most important aspect of his life (para. 40).
S said that his father wanted them to attend Catholic mass regularly and that
since he had been in England, he hardly attended. He said he wished to
continue to be Catholic (para. 41).
The child expressed worry about future violence form his father and that his
father might take him away from his mother (para. 41).
Child “I”:
- The officer found it difficult to have a conversation with I. He nodded when the
officer put to him that he found it difficult to express his feelings because he
did not wish to upset either of his parents. He also found it difficult to express
a choice between either parent. However, he was very clear that he did not
want to be separated from S (para. 42).
In December 2002, the older boy, now aged 11½,
contacted lawyers in order to be joined to the
proceedings. In July 2003, the boy was joined to
the proceedings as a second defendant. In July
2003, the boy was granted permission to appeal
the return order.
Trial
The trial judge looked at this evidence and stated that he was prepared to assume
that at 11, S was of an age when it was appropriate to take into account his views.
However, the judge concluded that it was obvious that the boy wished to live in
England principally, if not entirely to be with his mother. However, he did not have a
real objection to a return to Croatia in his mother’s care (para. 45)
Lawyer for the Children: Appeal Grounds
72
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
(1) The judge dismissed S’s objections on what may have been the false premise
that what he objected to was the separation from the mother as opposed to a
return to Croatia.
(2) The judge failed to give adequate weight to S’s well-founded fears of his
father, in particular the violence and fear that his father would take him away
from him.
(3) The judge failed to give adequate weight to the findings which he himself
made about the circumstances in which S found himself in August 2000
following his return to Croatia, mainly the separation from his mother and I
and not being returned to his mother’s care until after the custody decision in
May 2001.
(4) There was fresh evidence contained in the four affidavits delivered by the
children’s lawyer. These showed that S’s views had developed and
crystallized to such an extent that it would be wrong for the court to not revisit
those views.
(5) They noted the passage of time and that it should not be ignored in the
context of S being at grave risk of physical or psychological harm if returned
to Croatia.
Father’s Position
- The delay in the Hague proceeding had prejudiced the chance of the children
being returned to Croatia.
- No one had required the CRO to attend court or had challenged her
conclusions.
- The delay meant that there was a period of isolation where the children did
not see their Croatian family and that this caused S’s feelings toward the
father to be altered.
- The children had been manipulated, which changed their attitudes toward
him. The absence of contact had lessened the children’s feelings for him.
The Authorities
The Court of Appeal quoted 7 principles applied in Balcombe’s Re S (A Minor)
(Abduction: Custody Rights) [1993] Fam 242 (para. 60) :
73
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
(1) The part of Article 13 which relates to the child’s objections to being returned
is completely separate from paragraph (b) and there is no reason to interpret
this part of the Article as importing a requirement to establish a grave risk that
the return of the child would expose her to harm, other otherwise place her in
an intolerable situation.
(2) The question for a child’s objection is: (i) if the child objects to being returned
and (b) whether he/she has attained an age of maturity at which it is
appropriate to take account of its views. These are questions of fact which are
peculiarly within the province of the trial judge.
(3) It will usually be necessary for the judge to find out why the child objects to
being retuned. If the only reason is because it wants to remain with the
abducting parent, who is asserting that he or she is willing to return, then this
will be a highly relevant factor when the judge comes to consider the exercise
of discretion.
(4) Article 13 does not seek to lay down any age below which a child is to be
considered as having attained sufficient maturity for its views to be taken into
account.
(5) If the court should come to a conclusion that the child’s views have been
influenced by some other person (such as the abducting parent), then it is
probable that little or no weight will be given to those views.
(6) On the other hand, where the court finds that the child has valid reasons for
her objections to being returned, then it may refuse to order the return.
(7) Nevertheless it is only in exceptional cases under the Hague Convention that
the court should refuse to order the immediate return of a child who has been
wrongly removed.
The Court reviewed the principles that should be taken into account when a court
must determine whether or not it is appropriate to take into account a child’s views.
He recited the list from Re T (Abduction: Child's Objections to Return) [2000] 2 FLR
192 (para. 61)
(1) What is the child's own perspective of what is in her interests, short, medium
and long term? Self- perception is important because it is her views which
have to be judged appropriate.
(2) To what extent, if at all, are the reasons for objection rooted in reality or might
74
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
reasonably appear to the child to be so grounded?
(3) To what extent have those views been shaped or even coloured by undue
influence and pressure, directly or indirectly exerted by the abducting parent?
To what extent will the objections be mollified on return and, where it is the
case, on removal from any pernicious influence from the abducting parent?
The Court of Appeal accepted that S was of an age and maturity where it was
appropriate to take into account his views. The Court went on to say that therefore,
the door was open to exercise discretion not to order a return (para. 61).
Application of Principles to Facts of the Case
The Court of Appeal made the following points:
(a) The children’s lawyer was satisfied that S had not been influenced or forced
to object by his mother (para. 62).
(b) It is highly unusual for a child to be represented in Hague proceedings. A
child’s wishes and feelings are normally ascertained by the CRO and reported
to the court by the CRO. As the procedure is summary, it is by no means
unusual for the children to be seen on the day of the hearing itself (para. 63).
(c) “Where a child is to obtain separate representation, it is inevitably of the
greatest importance that the court in permitting the representation and giving
permission to appeal should, once again, be satisfied the child has an
independent viewpoint which needs to be placed before the court and which
has not been advanced. Once again, it is of the utmost importance to ensure
that the child is acting independently and wishes to put across a discrete point
of view (para. 66).
Children’s Lawyer
The Court of Appeal noted that the children’s lawyer had met with the child prior to
the appeal and was neutral. She had not seen any of the court papers (para. 68).
The children’s lawyer offered the following insight after her first interview:
The child’s lawyer filed a total of five affidavits in the appeal. She came to the
75
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
conclusion with her first interview with S that (paras. 29 and 68 to ):
- He was capable of giving her instructions
- He appeared to be expressing his own views
- He would not go back to Croatia emphasizing that he was very unhappy there
because of his father’s behaviour. His father was obsessively controlling; no
one could control his father even the courts couldn’t; he had seen the father
be violent with his mother.
- No one could control his father not even the court and that accordingly a
return to Croatia meant living with his father
- He hated Croatian school where he was bullied and had no friends and where
he was not doing well.
- The child believed that returning to Croatia meant to return to the care and
control of his father as well as a situation where his father would continue to
be abusive and violent to his mother and to both children.
The children’s lawyer made the following observations after her second interview with
the child and after she had read the court materials:
- S had not been “primed” and the language used to her was age appropriate.
He was mature beyond his years (para. 76).
The Court of Appeal concluded that: “In all of these circumstances, we are satisfied
that S’s Article 13 defence is made out. He is of an age and degree of maturity at
which it is appropriate to take account of his views. His views are clear and coherent.
They are rationally based. They are not unduly influenced by the views of his mother”
(para. 89). The Court of Appeal also noted that S had been living in England for in
excess of 2 years and that he was settled and doing well (para. 90).
The Court found that the appeal should succeed and that S and I should remain living
with their mother in the UK (para. 92).
T.B. v. J.B.
(Abduction:
Grave Risk of
Harm) [2001] 2
The application related to three children, age 14,
12, and 8, at the date of the alleged wrongful
removal.
Appeal
allowed and
ordered.
The
Some
weight
(oldest
child)
76
Appeal
The Court of Appeal stated that normally, the Court would be reluctant to disturb the
trial judge’s findings of fact. However, Convention cases are summary proceedings in
Case
Facts
Held
FLR 515
The father was a New Zealander and the mother
was British and immigrated to New Zealand when
6 years of age. The children had spent their entire
lives in New Zealand. The parents were divorced
and the separation agreement executed in 1991
stipulated joint custody of the children, with the
mother having primary care. The mother was not
permitted to take the children overseas other than
for holiday purposes during school vacations
exception with the leave of the father.
majority of
the Court of
Appeal
found that
none of the
exceptions
applied.
(Court of
Appeal)
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
which the judge has to do the best he can to apply the terms and principles of the
Convention largely on the basis of the affidavit of evidence put before him. The whole
point of the procedure is that the parent left behind should not be obliged to travel to
the country to which his children have been taken in order to give the evidence
needed to secure their return. This is a difficult exercise in which the trial judge is only
a little better placed than an appellate court (para. 27).
Risk of Physical or Psychological Harm
After an incident in 1991 the eldest child refused to
have further contact with her father. The father
never had contact with the youngest child, indeed
at one stage he wished to be reassured as to his
paternity. Only the middle child had regular contact
with the father, of about 4 weeks each year.
The majority of the Court of Appeal accepted that the trial judge had been correct in
finding that Article 13(1)(b) could include a situation where a primary caregiver’s
health deteriorated and affected her ability to care for her children. The risk of the
children was grave given: (a) the history of the abusive relationship between the
mother and her second husband, (b) the reoccurrence of the same risk that she could
not copy because of her financial and employment positions and harassment by the
ex-husband and (c) the prediction by a doctor that the mother would suffer more
depression if returned to New Zealand (para. 95).
The mother remarried in 1994 and later that year
gave birth to another child. The second marriage
ended in early 1997. The mother alleged that her
second husband was abusive and had mistreated
her and the children.
However, it was held that the trial judge had erred in not taking into account
measures that the mother could have reasonably expected to take in New Zealand to
protect herself and the children from her second husband (para. 96 and 97). The
Court of Appeal concluded that the protective steps could be taken and that if they
were taken, a risk of harm would not have existed (para. 98 and 99).
In March 2000, the mother travelled to England
with all 4 children. She did not obtain the
permission of either the father or of the court.
Initially it was her intention to stay until December
2000, but this changed. The mother claimed that
she was offered work in England and decided to
take it. She said that her primary motivation was to
get away from her second husband although she
also had financial worries and believed that her
creditors were after her.
Child’s Objections
The Court of Appeal cited the children’s objections in more detail:
K (at para. 17):
- She had no wish to return nor did she ever wish to see her father again. She
cried a lot.
- She hated her father and he had “touched her” when she was 5 or 6 and it
happened on a number of occasions.
- She described her mother’s second husband as a violent man and said that
77
Case
Facts
Held
Weight
Given to
Child’s
Objection
On May 20, 2000, the father petitioned for the
children’s return.
Important Statements & Reasoning
-
On July 27, 2000, the children were interviewed by
a court welfare officer. He reported that the eldest
child objected to a return but was of sufficient
maturity. The middle child was also of sufficient
maturity but was confused at having to choose
between his parents. The youngest child clearly
objected, but his maturity was more difficult to
assess.
he hit all of them, particularly her mother and brothers.
K was horrified at the possibility of returning to New Zealand.
K had a good grasp of her circumstances and spoke compellingly about her
feelings and wishes.
A (at para. 18):
- He really wanted to see his father.
- He hated his mother’s second husband. He regularly hit him and would starve
the children by sending them to bed with only bread and water. He regularly
beat his mother.
- He cried a lot and stated that he felt badly for lying to his father.
- A said that he wanted to go back to New Zealand but didn’t know what was
best for him. He missed his country and would like to be back with his father.
- He was unhappy and believes that he was the centre of all arguments and
fights at home between him and his siblings.
On August 1, 2000, the mother was seen by a
psychiatrist who found her to be suffering from
middle to moderate depression, with elements of
post-traumatic stress disorder, and stated that this
would become more profound if she were to
return.
KI (para. 19):
- He refused to return to New Zealand, although he said he missed his
grandparents, friends and cats.
Based on the review of the children’s objections, the court stated the following:
Before the High Court the mother argued three
objections: (1) the father had not exercised his
custody rights prior to the removal, (2) the children
objected to the return and (3) there would be a
grave risk of harm to the children or they would be
placed in an intolerable situation if required to
return to New Zealand.
K (para. 51): K was entitled to separate representation under Article 13 because she
was able to express her wishes and objections to the return. She was now 14 and a
half years old. It was important for her wishes to be respected as far as possible
(para 107).
However, despite K’s legitimate objections, the Court of Appeal concluded that since
the girl’s brothers were to return so should she. Attention was drawn to the closeness
of the siblings, the girl’s source of strength to her mother, and the mother’s
acknowledgement that the mother would not know how to cope without her daughter.
Given this, the Court of Appeal stated that it would exercise its discretion to not give
effect to K’s wishes and to have her ordered to return (para. 107).
On October 27, 2000, the High Court ruled that the
removal of the children had been wrongful, but it
found that a grave risk of an intolerable situation
had been proved in accordance with Article (1)(b)
and it exercised its discretion not to order the
return of the children. In reaching this finding, the
78
Case
Facts
Held
Weight
Given to
Child’s
Objection
trial judge accepted the mother’s evidence as to
the second husband’s mistreatment of her, the fact
that she might cease to copy were she to go back,
and the fact that the children were dependent on
her coping. He found that the children would be in
an intolerable situation if the mother’s ability to
care faltered and indeed that they could
consequently suffer physical and psychological
harm. The objections of the eldest child were
rejected because the court found that they were
based on the false premise that she would have to
have contact with her father if she were to return.
The trial judge said that as a matter of discretion,
he would regard the policy of the Convention as
carrying more weight than the child’s views.
Important Statements & Reasoning
The Court also stated that there was no documentary evidence of K’s present wishes
and no independent assessment of them. If the position had been less clear, the
Court would have wanted to consider whether the court should have some formal
and/or third party confirmation of the development of her views (para. 107).
The mother appealed.
Re T.
(Abduction
Child’s
Objections to
Return) [2000]
2 FCR 159
(Court of
Appeal)
The children, a girl (G) and a boy (T), were 11 and
6 ½ at the date of wrongful removal. The parents
were British but had moved to Spain shortly before
the birth of their son. The daughter was born in
England.
The parties separated for the first time in June
1997. According to the mother, the cause of the
deterioration of the relationship was the father’s
aggressive and violent conduct. The mother
commenced proceedings in the Spanish court and
on July 25, 2991 an interim custody order was
made in the mother’s favour with liberal visiting
rights afforded to the father. On about January 28,
1998, the father took the children to Gibraltar
without the mother’s knowledge or consent. She
Appeal
allowed,
removal
was
wrongful but
a return
was
refused.
The
standard
required
under 13(2)
had been
made out
with respect
to the older
Significant
weight
Evidence of the Child’s Objections at the Initial Hearing
The father provided written evidence that referred to threats made by G to commit
suicide. He also produced a letter from a family friend to whom G is alleged to have
said that she would rather die than go back to Spain.
The child’s GP wrote a letter which indicated that:
- G was not clinically depressed but he did feel that she was vulnerable
because of all that happened to her.
- He said that there was considerable pressure on the child and that she might
become depressed or react adversely to distress.
- The child had expressed that matters were beyond her control and that she
could not be influence in anyway.
- The doctor felt that she had been overwhelmed by the adult debate, by the
courts and the legal process.
79
Case
Facts
commenced Hague proceedings. The father was
ordered to return the children to the mother.
This was a high conflict case. There were various
severe incidents between the parties after the
initial abduction (the mother being violent towards
the father, the father being arrested for not
handing over the children, etc). The facts of this
case show that the mother was an alcohol and had
a serious drinking problem.
The parents separated for a second time and the
mother commenced divorce and custody
proceedings in Spain in July 2007.
Held
Weight
Given to
Child’s
Objection
child, that in
turn led to a
finding that
the younger
sibling
would face
an
intolerable
situation
under
Article
13(1)(b) if
returned
alone.
Important Statements & Reasoning
The child psychologist indicated that:
- G was eager to stay in England and her wishes were clear and unambiguous.
The Court welfare officer provided the following views:
- G had a maturity level commensurate with her chronological age
- She was thoughtful about what she said and her views did not appear
rehearsed and appeared to be independent
- She had spoken positively about her relationship with her father. However,
she could not find anything positive to say about her mother. She talked
about her mother’s drinking and the effect that it had on her. She did not wish
to see her mother.
- She enjoyed school in Spain but she wanted an English education and said
that she wanted to study English.
- She enjoyed her school in England and said that she did not miss anything in
Spain.
- The child had not been overtly influenced and there was nothing she noticed
that contradicted the psychological reports provided about the child.
The father removed the children to England on
January 3, 2000 and established a home near his
adult children from his former marriage.
Child’s Objections
On March 3, 20120, the English High Court
ordered the return of the children. It held that the
standard had not been made out under 13(2) to
show that the girl was of sufficient maturity for her
objections to a return to be taken into account. An
argument under 13(1)(b) was similarly rejected.
The father appealed.
G’s objections were noted in a letter from G to her mother. It indicated the following:
- The child was frightened to live in Spain again and frightened that she would
have to live with her mother.
- The child stated that the mother was “dangerous” when she was drunk and
that she drank frequently.
- The child wanted to mother her to leave her alone.
- The children wanted to live in England and stated that if the mother wanted to
see her, she should come to England.
The Court of Appeal stated that that this letter present persuaded the Court to give
the father permission to appeal.
Referring to the leading authority of S.v. S. (child abduction) [1993] 1 FCR 12, the
court said that the proper approach was as follows:
80
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
1. The part of article 13 which relates to the child’s objections to being returned
is completely separate from paragraph (b) and there is no reason to interpret
this part of the article as importing a requirement to establish a grave risk that
the return of the child would expose her to harm, or otherwise place her in an
intolerable situation.
2. The questions whether: (1) a child objects to being returned; and (ii) has
attained an age and degree of maturity at which it is appropriate to take
account of its views, are questions of fact which are peculiarly within the
province of the trial judge
3. It will usually be necessary for the judge to find out why the child objects to
being returned. If the only reason is because it wants to remain with the
abducting parent, who is asserting that he or she is unwilling to return, then
this will be a highly relevant factor when the judge comes to consider the
exercise of discretion.
4. Article 13 does not seek to lay down any age below which a child is to be
considered as not having attained sufficient maturity for its views to be taken
into account.
5. If the court should come to the conclusion that the child’s views have been
influenced by some other person, for example an abducting parent, or that the
objection to the return is because of a wish to remain with the abducting
parent, then it is probably that little or no weight will be given to those views.
6. On the other hand, where the court finds that the child has valid reasons for
her objection to being returned, then it may refuse to order the return.
7. Nevertheless it is only in exceptional cases under the Hague Convention that
the court should refuse to order the immediate return of a child who has been
wrongfully removed.
The Court outlined that the matters to be established were as follows:
(1) Whether the child objects to being returned to the country of habitual
residence, bearing in mind that there may be cases where this is so inevitably
and inextricably linked with an objection to living with the other parent that the
two factors cannot be separated.
(2) The age and degree of maturity of the child. Is the child more mature or less
81
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
mature than or as mature as her chronological age? The Court did not want to
define maturity. Clearly the child has to know what has happened to her and
to understand that there is a range of choice. A child may be mature enough
for it to be appropriate for her views to be taken into account even though she
may not have gained that level of maturity that she is fully emancipated from
parental dependence and can claim autonomy of decision-making. Once the
child is judged to be of an age and maturity for it to be appropriate for the
court to take account of her views then the Article 13 defence is established
and the court moves to the separate exercise of discretion as it is required to
be conducted under the Hague Convention.
(3) Is it appropriate to take account of the child’s views? In deciding this matter
four sub-issues arise:
a. What is the child’s own perspective of what is in her interests, short,
medium and long term? Self-perception is important because it is her
views which had to be judged appropriate.
b. To what extent, if at all, are the reasons for objection rooted in reality or
might reasonably appear to the child to be so grounded?
c. To what extent have those views been shaped or even coloured by undue
influence and pressure, directly or indirectly exerted by the abducting
parent?
d. To what extent will the objections be mollified on return and, where it is
the case, on removal from any pernicious influence from the abducting
parent?
The Court went on to further review the G’s objections as follows:
- In July 1998: G made a declaration to the Spanish Court. She referred to an
incident where her mother was violent to her father. She spoke of her mother
being aggressive under the influence of alcohol. She said that although she
was not afraid of her mother, she was apprehensive at being left alone with
her because she drank.
- In September 1998, G made a statement to the Spanish police that her
mother was drunk. This report was not before the lower court.
- A clinical report dated December 1998: the child was subjected to a
personality test and interview and it was concluded that she was intelligent,
82
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
-
-
-
-
-
adaptable and able to cope with the problems between her parents. While
initially the child indicated that she wished to live with her mother, she later
changed her mind. She did not feel safe around her mother and felt
mistreated.
In December 1998, the child told the judge that she loved her parents equally
but preferred staying with her father and visiting her mother because of the
problems her mother had with alcohol.
In February 1999, the child appeared before a judge for a second time. She
denied that her father forced her to say that her mother drinks. Her mother
said that if she continued saying that she drinks then all that she would
accomplish was that she and her brother would be sent to an orphanage.
In April 1999, the child wrote two letters, not placed before the judge. She
spoke of her fear of being placed in a children’s home. She then wrote
another letter to social services that indicated that she wanted to live with her
dad because of her mother’s drinking.
In May 1999, the child appeared before the police saying she was afraid to
return home for fear of reprisal from her mother. She complained that often
her mother did not give her food and that her mother hit her brother.
In June 1999, the child wrote again complaining about her mother’s drinking.
In September 1999, she appeared before the assistant to the judicial
secretary repeating her desire to live with her father.
G wrote a letter to her mother, which indicated that she did not wish to see
her mother.
Medical evidence and reports: The child feared being with her mother and in
her care. The father had indicated that the child discussed suicide with him in
Spain. There was a grave risk that the children would suffer psychological
damage if forced to stay in Spain. The child was of an age and maturity where
she understood the issues. There was special concern given that the child
had indicated that she did not ‘really care whether she lived or died as she
had no future’.
The Court of Appeals Conclusions
1. It has never been in issue that G objects to retuning to Spain. It is an
83
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
objection of returning to Spain and an objection of returning to her mother’s
care because she cannot trust her mother to not drink.
2. The child is 11 and has been found by Spanish psychologists to be mature
when she was age 10 and now 12. The reports say that she is mature beyond
her years. It is “irresistible that this child is not just of average maturity of her
age, but mature beyond her years given the burdens she has to carry”.
3. The child does not trust the mother given that she is an alcoholic. She fears
for herself and her brother if they return.
4. The court had no doubt that her views had been tainted by her father’s
hostility. He had taken her to the authorities in Spain, had caused her to write
her complaints to the authorities there and to the mother’s lawyers in
England. Nevertheless, the consistency of her approach and the expression
of love for her mother satisfied the court that her views were genuine and not
simply the product of her father’s obsession.
The Court noted that it had access to evidence that was not before the lower court
and that the lower court did not have the advantage of seeing. The Court concluded
that the girl was of an age and maturity that her views needed to be taken into
account. The Court of Appeal started that it was “totally satisfied that this defence is
made out and the judge was wrong to conclude otherwise”.
Exercise of Discretion
The Court balanced the following factors:
1. The spirit and purpose of the Hague Convention which is to leave it to the
courts of habitual residence to resolve the parental dispute. As the forum of
conveniens, the claim for Spain to resolve the children’s future is
overwhelming.
2. The abducting parent should not be permitted to create a situation which
makes it possible to raise an Article 13 defence. This is not the case. The
father’s decision not to return to Spain has undoubtedly strengthened G’s
objection, but even without it her objection remained firm.
The court concluded: “in the last analysis, the balance is between allowing the girl her
84
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Article 13 defence or enforcing the spirit of the Hague Convention despite the Article
13 defence. In my judgment, the demands of comity, convenience and even the
welfare of the child in having her future decided in the court of her habitual residence,
do not override the respect which should be paid to her wishes in this particular case.
Looking at her case in isolation and without reference to T’s, I would not order her
return”
T’s Claim
The Court stated that the focus had been on G and that very little evidence had been
directed about T.
The limited evidence indicated that:
- The child was shy and not expressive. He showed immaturity and had
emotional problems. He had indicated that he wanted to stay with his dad but
he could not articulate why.
The Court held that to return the younger brother alone would be to place him in an
intolerable situation. Reviewing previous authorities the court stressed that this
situation arose from the fact that the older sister did not want to return to Spain and
not as a result of the actions of the father. In reaching this conclusion, the court
further noted that the children were full siblings.
P. v. S., 2002
FamLR 2
(Inner House
of the Court of
Session, Extra
Division)
[Full case not
available on
INCADAT or
The application related to a boy born in the U.S. in
1990. The parents were married but separated in
February with the mother moving with the child
from the United States to Europe. She remarried
and moved between several countries before
going to Scotland in March 1998.
In October 1999, the mother gave birth to another
child. In February 1999, she and her second
husband separated. In March 1999, the mother
and children moved to a different town in Scotland.
Appeal
dismissed
and return
ordered;
removal
was
wrongful
and none of
the
exceptions
had been
No weight
Objections of the Child
The trial judge found that the boy, 10 ½ at the time of the hearing, objected to a
return and had attained an age and degree of maturity at which it was appropriate to
take account of his views. Exercising his discretion to make a return order, he noted
that a return order should not be refused unless there were sound reasons for not
giving effect to the objects of the Convention. The Court of Appeal held that the test
was incorrect as there was no presumption in favour of return where Article 13(2) had
been made out; rather the Court was free to exercise its discretion at large.
The Court noted that the Convention did not require the return of abducted children in
85
Case
Facts
Held
online.
INCADAT
summary
used].
In March 2000, the mother’s location was
discovered and the boy was taken into local
authority care pending determination of the father’s
return petition.
proved to
the requisite
standard
under the
Convention.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
every case and in identifying the policy of the instrument regard had to be paid not
only to the general rule of return, but equally the exceptions. Nevertheless the
existence of the exceptions did not negate or eliminate the general policy that
wrongfully removed children should be returned. The Court held that the trial judge
had not erred in his formulation and that he had not been working on a presumption
that the child be returned to the United States.
The Court held that it was not necessary to talk in terms of a ‘presumption’- and that
the trial judge had not done so-but the word itself was not inappropriate.
On May 24, 2000, the Outer House of the Court of
Session ordered the return of the child. The
mother and child appealed.
Settlement of the Child
On the issue of settlement of the child, it was argued that the trial judge had not been
entitled to look at the intentions of the abducting parent as to where she and the child
might go in the future.
The Court noted that Article 12 did not raise the issue of the settlement of the
abductor. However the court held that where a child was closely dependent on the
abductor it would be wrong to ignore the latter’s circumstances and intentions, upon
which the child’s degree of settlement was dependent.
The Court had held that a settled situation was one which could reasonably be relied
upon to last as matters stood and did not contain indications that it was likely to
change radically or to fall apart. There had therefore to be some projection into the
future.
The Court further held that the justification of the exception lay in the fact that the
continuance of the present circumstances looked likely and ought not to be interfered
with. If no such continuity was expected it was hard to see why the status quo should
be favoured.
Re S (Minors)
(Abduction:
Acquiescence
)
The appeal concerned three boys, aged 9, 8 and
4, whose parents were British and had immigrated
to Australia. The two eldest sons were born in
England and the youngest child was born in
Appeal
dismissed
Little
weight
Court Officer’s Evidence About the Children at Trial
The Court Offer provided oral evidence stating the following:
 N was not happy with his life in Australia. He referred to frequent arguments
86
Case
[1994] 1 FLR
819
(Court of
Appeal)
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Australia.

Following the breakdown of the marriage, the
mother wrongfully removed the boys to England.
Eight months later the father applied for the return
of the children.

The lower court accepted the father’s explanation
that his inactivity for a period of 8 months had
been due to the erroneous legal advice of his
solicitors. He also rejected to refuse an order
based on the child’s objections. Accordingly, the
court stated that it had no jurisdiction to refuse a
return order.
and unhappiness between his parents. He said that he did not wish to go
back to Australia.
N talked about his school in England and found it favourable to his school in
Australia. He gave a fair account of his opinion, but that level was very much
that of an 8 year old in terms of maturity.
N did not consider how often he would see his father if he lived in England.
Trial Judge’s Decision on the Child’s Objections
The judge stated that it should not be assumed that an 8 or 9 year, simply by virtue of
their age, are capable of attaining a degree of maturity which made it important to
take into account their views. He went on to state that in the circumstances of this
case, he was far from persuaded that N had attained an appropriate degree of
maturity. The judge stated that he reached this conclusion because if the child had an
appropriate degree of maturity, he would have been able to contemplate the variety
of circumstances to which he might return before stating his complete opposition.
The mother appealed.
The Court of Appeal’s Views on the Child’s Objections
Justice Waite
Justice Waite stated that it was common ground that Article 13 requires a two stage
approach to the issue of objections:
(1) Does the child object?
(2) Has the child attained an age and degree of maturity at which it is appropriate
to take account of the child’s views?
These are the “gateway” findings. It is only if both questions are answered that the
judge may go on to consider whether, as a matter of discretion, the return order
which would otherwise be mandatory under Article 12 ought to be refused.
Justice Waite made the following important statement: “When Article 13 speaks of an
age and maturity level at which it is appropriate to take account of a child’s views, the
inquiry which it envisages is not restricted to a generalized appraisal of the child’s
capacity to form and express views which bear the hallmark of maturity. It is
87
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
permissible (and indeed will often be necessary) for the court to make specific inquiry
as to whether the child has reached a stage of development at which, when asked
the question “do you object to a return to your home country?” he or she can be relied
on to give answer which does not depend on instinct alone, but is influenced by the
discernment which a mature child brings to the long and short term. It seems to be to
be entirely permissible, therefore, for a child to be questioned (even at a the
preliminary gateway stage) by a suitably skilled independent person with a view to
finding out how far the child is capable of understanding- and does actually
understand- those implications”.
Justice Waite went on to say that the line of questioning adopted by the welfare
officer was entirely appropriate and that the judge had every justification for relying on
N’s answers as part of the evidence taken into account when assessing his maturity.
Justice Hoffmann: Stated that he entirely agreed with the decision of Justice Waite as
it pertained to the child’s objections.
Justice Neill: Stated that if the court were to find that N’s views should be taken into
account, the court would be entitled to refuse to order the return of any of the three
children. He completely agreed with the decision of Justice Waite.
Re S. (A
Minor)
(Abduction:
Custody
Rights) [1993]
Fam 242
(Court of
Appeal, Civil
Division)
The child, C.S., was born in 1982. The mother was
English and the father was French. The parents
met in Indonesia and married in England. Then the
mother became pregnant with C.S., the parties
were living in Indonesia. The mother came back to
England to give birth and spent a few months in
England after the child’s birth.
Appeal
upheld
Significant
weight
Mother’s Affidavit On Appeal
The mother’s affidavit stated that C.S. had indicated that she did not wish to return to
France. The mother acknowledged that there was no independent evidence of C.S.’s
views, but that the judge was invited to see the child. The judge felt that it would be
inappropriate to interview the child so he asked a Court Welfare Officer to do so.
The Court Officer had a long interview with the child and gave her report orally. He
stated the following:
 The child was a sophisticated conversationalist. She felt really strongly that
she did not want to go back to France.
 She had a miserable experience going to school in France. She felt out of
place. Being forced to speak French brought out the child’s speech
After the children’s birth, the parties lived in
Norway and France. Apart from the short time after
C.S.’s birth, she had not lived in England. At the
time of the child’s abduction, the parties were living
in France. The mother left with the child for
88
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
England and immediately enrolled the child in an
English school.

The father brought an application for the return of
the child to France.


The evidence showed that the child had longstanding psychological issues, which manifested
themselves in speech difficulties. Reports showed
that the child had a high IQ and the mental age of
a 12 year old child.
difficulties.
The child’s views were not rehearsed and she was able to separate her
feelings from her parents.
The child stated that she was not influenced by her mother’s views.
The child was intellectually mature. The Officer felt that it was necessary to
give weight to the child’s views.
Construction of Article 13
The Court made the following two points:
(1) The part of Article 13 which relates to the child’s objections to being returned
is completely separate from paragraph (b), which relates to a grave risk of
psychological harm.
(2) To consider the child’s objections, the court must be satisfied that the child’s
views are more than a mere preference.
(3) The child’s objection is to be related to the immediate return to the country
from which they were removed so the courts of that country may resolve the
dispute. There is nothing in the provisions of Article 13 to make it appropriate
to consider whether the child objects to returning in any circumstances.
The lower court dismissed the application for the
return of the child to France. In refusing to order
C.S.’s return to France, the Court relied on C.S.’s
objections to being returned.
How to “Open the Door” Under Article 13
Via the following questions of fact:
(1) A child objects to being returned; and
(2) Has attained an age and degree of maturity at which it is appropriate to take
account of their views.
The judge will need to find out why the child objects to being returned. “If the only
reason is because it wants to remain with the abducting parent, who is also asserting
that he or she is unwilling to return, then this will be a highly relevant factor when the
judge comes to the exercise of discretion”.
The Court of Appeal went on to say that: “Article 13 does not seek to lay down any
age below which a child is to be considered as not having attained sufficient maturity
89
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
for its views to be taken into account. Nor should we.”
The Court of Appeal stated that no criticism could be made of the lower court’s
decision- the way the judge ascertained the child’s views was appropriate as was the
procedure he adopted for this purpose. There was evidence which entitled the judge
to find that C.S. objected to being returned to France and that she had attained an
age and degree of maturity at which it is appropriate to take account of her views.
Those are findings that court stated it did not wish to interfere with.
Exercise of Discretion
The Court stated that “The scheme of the Hague Convention is that in normal
circumstances it is considered to be in the best interests of children generally that
they should be promptly returned to the country whence they have been wrongfully
removed, and that it is only in exceptional cases that the court should have a
discretion to refuse to order an immediate return. That discretion must be exercised
in the context of the approach of the Convention”.
If a court comes to the conclusion that the child’s views have been influenced by
other people, e.g. the abducting parent, or that the objection to return is because of a
wish to remain with the abducting parent, then it is probably that little or no weight
should be given to those views.
The Court of Appeal stated that in the present case, C.S. objected strongly to being
returned to France. Her reasons were not merely a desire to remain in England with
her mother. The Court of Appeal stated that it could not interfere with the judge’s
exercise of discretion unless the judge took into account some irrelevant fact, left out
of account some relevant factor, or was plainly wrong. The judge did not take into
account any irrelevant factor.
The court concluded: “Nothing which we have said in this judgment should detract
from the view, which has been frequently expressed and which we repeat, that it is
only in exceptional cases under the Hague Convention that the court should refuse to
order the immediate return of a child who has been wrongfully removed. This is an
90
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
exceptional case and accordingly we dismiss the appeal”.
FINLAND
Case
Facts
Held
Supreme
Court of
Finland:
KKO:2004:76
The Application related to two children, both boys,
who were aged 12 and almost 9 at the date of the
removal. The parents were divorced and had joint
custody. The father had care of the boys and they
lived with them in the United States.
Appeal
allowed and
return
ordered.
Article 13(2)
had not
been proved
to the
standard
required
under the
Convention.
(Supreme
Court of
Finland)
In the summer of 2003, the boys went to Finland to
say with their mother. However, at the end of the
stay, she refused to return them. On October 13,
2003, the father filed a return application with the
Helsinki Court of Appeal (the jurisdiction of first
instance in child abduction cases). On April 14,
2004, the application was rejected on the ground
that the children objected to a return. The father
appealed to the Supreme Court.
Weight
Given to
Child’s
Objection
None
Important Statements & Reasoning
The Children’s Objections (as indicated in the Court of Appeal decision)
A psychiatrist had met the children two times and interviewed the children
separately and then together. The boys never heard one another’s views. After
meeting with the children, the psychiatrist was persuaded by their opinions. He
said:
- that both of the children objected and wanted to remain in Finland with
their mother;
- transfer to the U.S. would be traumatic for the children;
- it would be wrong to force the older boy to return without an extremely
compelling reason to do so;
- the younger boy was mature and his opinions needed to be taken into
account. He unquestionably wanted to remain with the mother in
Finland;
- the children had good memories of their father but they had experienced
terrible experiences;
- the children were welcomed into Finland and felt safe their;
- the children feared being separated from one another.
91
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The Convention Principles
1. The decision regarding the return of the child must be kept separated
from the custody decision (para. 3).
2. The purpose of the Hague Agreement is to secure compliance with
custody and access decisions or ensure that custody disputes are dealt
with the country that the children are habitually resident (para. 5).
3. The Convention aims to restore the status quo as quickly as possible by
returning the child to the country where he/she was habitually resident
before the removal (para. 6).
4. The passage of time can change a child’s situation and the relationship
between parents in a way that will likely benefit the parent that acted
illegally. The Convention is aimed at preventing the abducting parent
from benefiting from their act. It is the reason why the issue of the
child’s return is dealt with as soon as possible (para. 7).
Child’s Objections (Supreme Court decision)
The Court stated that the children’s return was a separate issue from the
question of the custody and the child’s welfare. It is not enough for the child to
oppose the return. It is important to assess: if the child has enough information
on the issue, whether the child has considered the issue carefully and whether
he has expressed his opinion without coercion, persuasion, manipulation or
undue influence (para. 14).
The ability for a child to have an independent and adequate understanding of
the issue depends on his age and level of development. According to the
applicable legal provisions, the Court stated that there was no fixed age in
terms of when the child’s resistance is given weight (para. 15).
The Court noted that the children had been seen twice by a youth psychiatrist
and 12 times by an art and play therapist. Both experts had reported that the
boys had expressed negative views about their father and life in the U.S. They
had stated that they wished to stay in Finland with their mother (paras. 16 and
92
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
17).
The boys told the therapist that life in Finland was safe and interesting. In the
U.S., they had little to do. The boys felt that they had a terrible father (para. 18).
The Supreme Court reviewed the children’s statements and concluded that they
did not indicate that the children were sufficiently “aware of what is at stake
when considering the return” and the importance it would have on their future
lives. It could not be inferred that the children’s opinions had been formed of
their own free will. The Court noted that the evidence did not support the picture
painted of the father or of the father’s relationship with the children (para. 19).
The Court added that it was “well known” that a child could “easily” adopt the
views of the parent he/she lives with, especially if the communication with the
other parent has, for one reason or another, been limited or under adverse
conditions. The negative conceptions of the parent left behind could become
stronger the longer the situation goes on (para. 20).
For these reasons, the Court found that the exception had not been established
and it ordered the return of the boys to the U.S.
FRANCE
Case
CA Paris, 31
mai 2012, No
de RG
12/05844
Facts
The case concerned a girl born in Portugal to a
Venezuelan father and a Portuguese mother.
In 2010, a Portuguese court approved a parental
agreement whereby parental responsibility was
Held
Appeal
dismissed.
The removal
was
wrongful
Weight
Given to
Child’s
Objection
None
Important Statements & Reasoning
Grounds of Appeal
The mother appealed on the ground that the child had attained an age and
maturity in which it was appropriate to take into his account not to return to
Portugal and that the child would be exposed to psychological harm and an
93
Case
Facts
Held
(Paris Court
of Appeal)
shared, the child would reside with her mother,
and the father had very extensive rights of access.
The agreement provided that the neither parent
could go abroad with the child without the written
permission of the other parent.
and the
judge
ordered the
child to
return to
Portugal.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
intolerable situation if he was returned.
Risk of Harm
The Court found that there was no risk of psychological harm to the child. The
father had regular contract with the child prior to the removal and there was no
evidence that the child would experience harm returning to Portugal.
In 2011, the mother moved to France with the child
without the father’s approval.
Child Objections
On March 9, 2012, the judge in charge of family
matters at the Tribunal de Grande Instance of
Paris ordered the child’s immediate return to
Portugal. The mother appealed.
The Court acknowledged that the child had expressed that he wanted to stay in
France with this mother and that he feared being separated from her. A
psychologist letter had indicated that the child was only nine year old and that
she was in the middle of the conflict between her parents.
Re: Child’s Objection
The Court of Appeal confirmed the lower court’s statement that the child was
only nine years old and was “at the core of a very acute conflict between her
parents”. It was in her best interest to maintain relations with each parent in her
home country. Further, they stated that the mother had not proved that she
would not be able to return with her daughter to Portugal.
The child, age 9, testified at the lower court and
expressed her wish to remain in France. She
stated that she had a fear of being away from her
mother.
Cass Civ 1ère,
12 avril 2012,
Nº de pourvoi
11-20.357
(Superior
Appellate
Court or Cour
de Cassation)
The father was a Mexican national and the mother
was a French national. The parties lived in Mexico
where their two children were born (Alexandra was
11 and Matthias was 8 at the time of Appeal).The
couple separated in 2006.
Appeal
dismissed.
13(2)
defence not
made out.
No weightpossible
influence
by mother
and limited
objections
In June 2010, the mother returned to France and
was joined by her children approximately one
month later. The father petitioned for the return of
the children under the Convention.
Higher Court’s Decision
The judge noted that Alexandra’s objections were genuine and that she had the
maturity required to have her views taken into account. Matthias had expressed
that he did not wish to be separated from his sister.
The court rejected the return of the two children.
Court of Appeal decision
The mother claimed that the Higher Court ruled without considering the
objections of the children.
In April 2011, the High Court of Rennes ordered
that the child not be returned given that they had
94
Case
Facts
Held
Weight
Given to
Child’s
Objection
made out the 13(2) defence under the Convention.
Important Statements & Reasoning
The Court of Appeal noted that the children had been in the care of their mother
and it could not be ignored that the mother may have had an influence over
their feelings. The children had been with their mother alone for many months,
without regular contact with their father. The mother’s influence on the feelings
expressed by the children in their interview could therefore not be disregarded.
In addition, it was not specified how the Family Court had explained to the
children the difference between the return contemplated pursuant to the
Convention and the ruling on the merits regarding custody.
In June 2011, the Court of Appeal ordered the
children’s return. The Court of Appeal expressed
that the children did not have the necessary
maturity for the Court to take their views into
consideration.
The court stated that there was nothing in the record about the children’s
objections, other than the fact that: (1) Alexandra did not know that leaving
Mexico meant that she would reside in France, (2) that she and her brother
wanted to live in France and go to Mexico on the summer holidays. The views
expressed by Alexandra did not reflect rational opposition to a return.
The Court concluded that the children, aged 9 and 6 ½ years, did not have the
necessary maturity to express their feelings to a court on whether they should
return to Mexico.
Superior Appellate Court Decision
(1) The Court found that the father had exercised custody rights prior to the
children’s removal.
(2) The Court rejected the mother’s claim of the adverse effects that the air
pollution and crime had on the children in Mexico City.
(3) The mother did not convince the court that there was a grave
psychological or physical risk to the children if they were returned to
Mexico.
(4) The Court agreed with the lower court that the children had been in the
care of their mother and that their views had been influenced by
her..”…we cannot ignore the influence of Mrs. Y in the sentiments
expressed by Alexandra and Matthias before the family court judge”.
The Court also agreed that there was nothing on record other than the
fact that Alexandra did not know that leaving Mexico meant moving to
95
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
France and that the children wanted to live in France. Alexandra’s
objections should not be given weight in light of her age and maturity
level.
Cass Civ 1ère
8 Juillet 2010,
N° de pourvoi
09-66406
(Court de
Cassation,
Superior
Appellate
Court)
The parties were married in France in 1996 and
had two children, Dylan and Austin. They divorced
in 2001. The mother was granted custody of the
children and the father was to have access rights.
The mother moved to England with her two
children after being granted permission by a court
in 2007. The children went to visit their father
during Christmas in 2008 and were not returned.
The mother applied for their return.
Appeal
dismissed.
Little
weight.
The Court of Appeal’s Decision
The Court of appeal noted that the children, aged 14 and 11 at the time of the
hearing, had shown maturity and were opposed to their return. Nevertheless, it
felt that it could not be ignored that the children’s opinion had been influenced
by the loyalty conflict with which they were confronted. In addition, they had
been entirely cut off from their mother for more than 3 months. The Court also
noted that the children had referred to the same events that they had mentioned
in a previous hearing, following a previous removal, and finally it was observed
that all measures had been taken in their best interests in England, underlining
the fact that the English High Court was waiting for the return of the children in
order to decide on the appointment of a CAFCASS officer for them.
In February 2009, the family judge of Poitiers
Regional Court ordered the return of the children.
The father appealed requesting suspension of
provisional enforcement. His request for
suspension was rejected in March 2009.
It was concluded that the children’s opposition alone did not justify not ordering
their return.
The Court of Appeal dismissed the father’s appeal.
The retention as wrongful and the grounds of
exception under the Convention were not
applicable.
The Father’s Grounds of Appeal
Among other complaints, the father claimed that the children had reached an
age and maturity sufficient to consider their objections and that the Court of
Appeal was wrong not to do so.
The Court of Cassation upheld the Court of Appeal’s views on the children’s
objections.
CA Dijon, 17
juin 2010, No
de RG
10/00967
The case concerned a boy born named Shaian
born in 2001. The father was of Belgian nationality
and the mother was French. The parents divorced
in Belgium in 2004. The child at the time lived with
his mother and his father had a right of access.
Appeal
dismissed
and return
ordered.
The removal
No weight
Grounds of Appeal
The mother asked the Court of Appeal to hear the child’s psychologist or to
have the child give his opinion or testimony before the Court.
96
Case
(Court of
Appeal of
Dijon)
Facts
Starting in 2007, the mother expressed a wish to
move to France, but her application for permission
to move there with the child was denied in
November 2008. She appealed against that
decision but left Belgium with the child immediately
in December 2008. The Court of Appeal eventually
upheld the decision and granted the father custody
of the child starting July 1, 2009.
Held
Weight
Given to
Child’s
Objection
was
wrongful
and the
exceptions
were
inapplicable
Custody
The Court of Appeal concluded that it was not disputed that the father had
effectively and regularly exercised his custody rights under the Convention. The
removal of the child was wrongful and he did not consent to it.
In addition, statements from father’s previous partner and the maternal family
were biased and not sufficient to establish the father’s violent behaviour. The
father’s violent tendencies were not mentioned in prior judicial proceedings.
Child’s Objection
In the meantime, the father had made an
application for the child’s return.
The Court of Appeal noted that Shian was heard by the trial judge and
unambiguously objected to his return to Belgium. It pointed out, however, that
this child was under the age of 10 and had been subjected for 15 months to “the
sole influence of his mother, who prevented any contact” with his father and did
not abide by her undertaking to allow a temporary return of the child to Belgium
at Easter 2009. “Subjected to such a conditioning, so young a child” could not
“have sufficient detachment and maturity for its objection to be taken into
account”.
In April 2010, the family judge at the Tribunal of
Dijon dismissed the mother’s application and
ordered the child’s return to Belgium. The mother
appealed.
CA Nîmes, 18
février 2009,
No de RG
08/04984
(Court of
Appeal of
Nimes)
The case concerned two children, Allison, born in
1993 (15 at the time of the removal) and James,
born in 1999 (9 at the time of the removal). The
father was French and the mother was American.
The children were born and raised in the United
States.
Following separation, a Baltimore Court ordered
that the parties have joint custody of the children,
with the mother having physical custody and the
father, a right of access. In April 2006, the father
moved to France.
Important Statements & Reasoning
Appeal
dismissed
and return
refused. The
retention
was
wrongful but
several
exceptions
applicable
Moderate
weight- it
appears
that the
judge was
most
convinced
by the
exception
that the
children
would face
a grave
97
Removal and Return
The Court of Appeal concluded that the children’s retention was wrongful as the
mother had physical custody of the children since 2006.
Grave Risk
The Court of Appeal state that the mother had been imprisoned for a time in
2007, and against starting in May 2008 (for drug possession and fraudulently
producing forged prescriptions) There was evidence that the mother required
psychological therapy. James had been placed with his maternal grandparents
and an aunt, and Allison, with the friend’s mother. The father was in touch with
education and social services and had organized the children’s travel to France
Case
Facts
Held
In June 2008, Allison and James travelled to
France and did not return. The mother applied for
the children’s return.
In July 2008, the Circuit Court of Baltimore
ordered: (a) that Sylvain immediately return the
children to the U.S; (b) that the children’s legal
place of residence was with the mother; and (c)
that the father have no further visitation rights with
the child.
Weight
Given to
Child’s
Objection
risk of
harm if
ordered to
return
given the
mother’s
neglect of
the
children
On October 1, 2008, the family judge at the
tribunal of Nimes, France, held the children’s
retention to be wrongful but refused to order their
return on the basis of Article 13(b) and of Article
13(2). The Public Prosecutor’s Office appealed
against that decision.
Important Statements & Reasoning
during their mother’s imprisonment.
The evidence showed that for the months leading up to the mother’s
imprisonment, James had come to school hungry, dirty and tired. He told the
social worker that he and his mother were homeless and slept in the car or park
frequently. The mother’s friend, led evidence that she cared for, fed, clothed
and washed Allison when the mother was unable to.
The Court found that the mother failed to provide, or provided insufficiently, for
their basic needs of food, clothing, care and education, schooled them
irregularly, had no permanent residence, frequently slept with the children in a
car and parks, and was addicted to medication. The court was made aware that
the two children were expected to be placed in the care of social services in
2008 before their visit to France.
The court determined that the return would expose the children to a grave risk.
Child’s Objections
On January 12, 2009, counsel for the mother
stated that she wished to put an end to the
proceedings for the children’s return.
The assistant prosecutor spoke with the children by phone and they indicated
that they wished to stay in France with their father.
The Court of Appeal stated that Allison and James were very opposed to their
return and were deeply disturbed by the possibility of returning to the United
States.
Acquiescence
The Court found that the mother’s expressed desire not to proceed with the
return procedure was acquiescence to the children’s removal and residence in
France.
Cass Civ 1ère
17 Octobre
[The English translation of this case is difficult to
understand. For this reason, the facts of this case
Appeal
dismissed.
Some
weight
98
The Parents Grounds of Appeal
]
Case
2007 No. 0618.100
(Cour de
Cassation)
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
(1) A judge should give notice of a child’s right to be heard by a solicitor or
other person of the child’s choice. The parents claimed that it was not
apparent from the hearing that Tania had been informed of his right to
be assisted by a lawyer. The Court of Appeal had infringed Article 338-7
of the new Code of Civil Procedure, Article 388-1 of the Civil Code,
Article 13 of the Hague Convention and Article 12 of the New York
Convention.
are not clear].
The parties were married in Portugal and had one
child. The child, Tania, was born in 1995. On
February 5, 2004, a court entrusted another couple
with the custody and care of the child. The child
was being wrongfully retained by his biological
parents in France. The prosecutor of Rennes
applied for his return under the Hague Convention.
(2) The child had stated that he wished to remain in France with her
biological parents. The parents claimed that the Court of Appeal was
wrong to rely on the minutes of the hearing with Tania for the following
reasons: the Court did not know how and to what extent these
comments were obtained, it was not possible to know how independent
and genuine these comments were, and it was not clear if the hearing
took place in the presence of his parents. The Court of Appeal was
found to have infringed the above noted legislation.
The Court of Appeal set aside the Order of the
lower court requiring the return of the child to
Portugal.
(3) The Court of Appeal was required to take into account the information
provided by the Central Authority of the state of habitual residence of
the child’s social situation.
Court Decision
The Court stated that the child had been informed, in accordance with Article
338-5 of the new Code of Civil Procedure, of the right to attend the hearing and
of the opportunity to be assisted by counsel. The Court of Appeal also
considered an independent assessment of the facts submitted, including those
related to the situation of the child in Portugal and those submitted by Tania
who had acquired a degree of maturity to allow him to express his feelings. He
stated that he wished to continue to live with his biological parents and his older
sister.
The Court found that the child had lived for more than 2 years in France with his
parents and sister and that a return would put him in an intolerable situation.
99
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The exception to his return was found to be justified under 13(b) of the Hague
Convention.
CA Bordeaux,
19 janvier
2007, No de
RG 06/002739
(Bordeaux
Court of
Appeal)
The children Alejandro, born in 1993 and
Stephanie, born in 1998, were born in Spain. The
family resided in Spain until 2000, then in France
from 2000 to April 2003, prior to settling in Spain
again. The parents, who were not married,
separated at the end of 2004.
In August 2005, the father took the eldest of the
children, Alejandro, to France. In November 2005,
he also took the youngest daughter, Stephanie, to
France against the mother’s wishes. On November
11, 2005, two days before the removal of
Stephanie, the parents agreed before a notary that
the children’s primary residence would be with the
mother.
Appeal
allowed and
return
ordered.
The Hague
Convention
imposed the
return of the
children to
Spain.
No Weight
– possible
influence
by the
father
The Mother’s Arguments
1. The displacement of the children was unlawful since custody had been
given to the mother.
2. There was a serious risk to the children under Article 13(b) of the
Convention given the children’s fears.
The Father’s Arguments
1. The children were in Spain and France at one point in their life and are
now back in France. They are integrated in France.
2. The children refuse to return to Spain.
3. The notarized agreement between the parties did not have the same
value as a court order and there was no Spanish court order.
Custody
The mother asked that the children be returned to
Spain.
The Court stated that it was undisputed and admitted by all of the parties that
the children lived with their mother in Spain who regularly exercised custody. It
was also recognized by all of the parties that the father removed the children
without right or permission to France.
The judge heard the views of the children on May
15, 2006. On May 18, 2006, the Tribunal De
Grande Instance (ordinary court of first instance) of
Bordeaux found that the removal was wrongful but
refused to order the return of the children as it
considered Article 13 applicable. In particular,
paragraph 13(b).
Exceptions
The Court of Appeal reviewed the main principle of the Convention, i.e. the
Convention established that the judge dealing with a wrongful removal should
order the immediate return of the child (if less than 12 months has passed).
The French Public Prosecutor appealed the
decision with the mother.
The immediate return is not required if there is evidence that there is a grave
risk that the return would expose the child to physical or psychological harm, or
place a child in an intolerable situation, or if the child objects to being returned
and has attained an age and degree of maturity at which it is appropriate to take
100
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
account of this opinion.
Brussels Regulation II, to be followed by all members of the European Union
Convention, states that a court cannot refuse to return a child under Article
13(b) of the Convention if it is established that adequate arrangements have
been made to ensure the protection of the child after his return.
Risk of Harm to the Child
The Court of Appeal reviewed the evidence before the court that the mother,
arguing Article 11 of the Regulation, provided various documents from the
Spanish authorities indicating that appropriate measures had been taken to
ensure protection of the children after their return. A psychosocial team had
been judicially appointed to report on the mother’s psychological issues.
Contrary to the assertions of the father, the report did not reveal the
psychological difficulties he claimed that the mother had. The report only
showed that the mother had moderate depression and the team stated that the
mother would be able to care of the two children.
Contrary to the father’s assertion that the mother was addicted to drugs, all of
the mother’s lab tests came back negative.
A specialized Court in Spain concluded, in May 2006, that there was an
absence of risk with regard to the mother within the meaning of the Convention
Further, the Court of Appeal noted that it was contradictory for the father to
have agreed that the children have their primary residence with their mother if
he feared the children were at risk. This established that at the time of the
abduction, the father did not consider the mother to be a risk.
The Children’s Objections
Regarding the children’s refusal to leave Spain, the lower court had observed
101
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
that the children were heard on May 15 2006, which was many months after
their abduction by their father. They had lived continuously with their father
without any contact with their mother.
The Court of Appeal stated that the value of the children’s testimony could not
be analyzed without considering that the children had lived for several months
with their abductor and that they had limited contact with their mother. The
children’s claims that the mother used drugs were dealt with by the Spanish
authorities and their investigation.
Moreover, the father was suspected of violence or abuse and the Court of
Appeal stated that it was not responsible for ruling on the merits of custody or
access, but only on the issue of immediate return.
The Court of Appeal concluded that the children should immediately return to
Spain with their mother.
Cass Civ 1ère
14 November
2006 (N° de
pourvoi : 0515692)
(Cour de
Cassation,
Superior
Appellate
Court)
The case related to two children Maxine, born in
1997 (7 years of age) and Daniel, born in 1999 (5
years of age) on the date of wrongful removal.
The parties were married in South Africa.
Following the separation of the parents in 2003,
the father remained in France while the mother
and children moved to England.
In February 2004, following a period of contact in
England, the father unilaterally removed the
children to France. The French Central Authority
was seized of the return application on March 16,
2004.
On April 7, 2005, the Court D’Appel at Aix-enProvence ordered the immediate return of the
The
challenge
was rejected
and the
return order
confirmed.
The removal
was
wrongful
and the
Court
D’Appel had
correctly
found the
Article 13
exceptions
to be in
No weight
The Father’s Grounds of Appeal
1. The removal was not wrongful because as a parent his rights of custody
were identical to those of the mother.
2. That a return would expose the child to physical or psychological harm
or otherwise place the children in an intolerable situation. The father
argued that a report by a doctor supported this claim. Maxine had told
the doctor the following: that her mother left her alone at night with her
brother and that she was “very scared”, she does not get fed regularly,
the mother had slept with two men whom she had “kissed on the
mouth”, the mother had pretended to strangle the children and her
mother would return in the morning and sleep part of the day while the
children were waiting until the mother can take care of them.
3. The Court should refuse an order when the child objects to the return
and is of an age and maturity level sufficient for his/her views to be
102
Case
Facts
children to England. The father issued a legal
challenge before the Cour de Cassation.
Held
Weight
Given to
Child’s
Objection
applicable.
Important Statements & Reasoning
taken into account. The father pointed to the fact that a report submitted
by a third party quoted the child saying that she did not wish to return to
live with her mother.
Rights of Custody
The Court found that the Court of Appeal’s decision was right to have stated
that the removal was wrongful given that the children were removed to France
without agreement and unilaterally by the father. This action had breached the
mother’s custody, which ha amicably been agreed to by the parents.
Habitual residence
The Court noted that the Court of Appeal was able to deduce from the evidence
of several witnesses that the children were habitually resident in England. The
residence of the mother and children there was not provisional in nature. The
mother had paid employment and the children were enrolled in kindergarten.
Furthermore, the father had accepted the relocation to the UK since he had not
challenged the wrongful removal from the country and the girls had visited there
in October 2003 and 2004.
Objections of the Child
The Court stated that the report from the third party indicating that the child did
not want to return to live with his mother did not explain the views of the child.
Grave Risk
The Court noted how the Court of Appeal had found that a police inquiry carried
out in England had revealed no evidence of a harmful home environment. The
social services had not opened a case file on the children and the headmaster
of the children’s school had not noticed any signs of harm.
The Court further noted that the medical certificate relied on by the father had
103
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
been compiled more than three months after the removal of the children and the
Court questioned why the father had not raised the issue of the children being
mistreated when he was interviewed by police in 2004. During the course of this
interview, the father had agreed to a voluntary return, although it was not
carried out.
CA SaintDenis de la
Réunion, 2
mai 2006
(Court of
Appeal of
Saint-Denis
De La
Reunion)
The children at issue were girl and a boy born in
1993 and 2002 respectively in Mauritius. The
parents exercised joint parental authority.
The mother took the children to France. The father
asked for the children’s return. In November 2005,
the Tribunal de Grande Instance of Saint-Denis of
Reunion ordered the return of the children to
Mauritius.
The mother appealed
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used].
Appeal
dismissed
and return
order
upheld. The
removal was
wrongful
and none of
the
exceptions
were
applicable.
No weight
Rights of Custody
The Appeal Court, which found that the parents had joint parental authority,
noted that the mother could not, without the consent of the father, unilaterally
change the place of habitual residence of the children, which had, based on a
joint decision, been Mauritius. The fact that she had informed the French
embassy in Mauritius or that the father could have seen the children in France
were irrelevant to the wrongfulness of the removal.
Grave Risk
The mother invoked the existence of a grave risk of harm. She reported
violence by the father and the difference in educational systems to oppose the
children’s return. The Court observed that the allegations produced by the
mother were vague and did not relate to the children; the only account of
violence towards a child concerned an incident in 1992 involving another child.
Furthermore, the difference in educational systems was invalid as the child had
been previously educated in Mauritius.
Objections of the Child
The mother relied on the objections of her eldest child, aged 12.
The Court found that, to justify her choice to live in France, she stated that her
father wanted to send her there by herself to study and that she did not want to
leave without her mother or her brother. According to the Court, the argument
was so paradoxical and revealed such a lack of maturity that the child’s
objections could not be taken into account.
104
Case
Cass. Civ 1ère
(pourvoi n°
05-14646 )
(Cour de
Cassation)
Facts
The parents were married and lived in Canada.
They had to children, Maximilian, born in 1993
(and age 6 at the time of the removal) and
Josephine, born in 1995 (and age 6 at the date of
removal).
On August 27, 2011, the mother left the family
residence with her children to return to France.
The father contracted the Canadian Central
Authority to request the children’s return.
The Tribunal de Grande Instance de Privas
ordered the return of the children. On July 20,
2004, the Cour D’Appel de Nimes upheld this
decision. The mother challenged the legality of the
decision before the Cour de Cassation.
Held
Weight
Given to
Child’s
Objection
Appeal
dismissed;
the Court of
Appeal had
been correct
in finding
that none of
the
exceptions
had been
proved to
the standard
required
under the
Convention.
No weight
Important Statements & Reasoning
Grounds of Appeal
The mother claimed that the children’s objections had not given weight. The
Court should have considered whether the children’s objections alone could
have justified a non-return order being made. In particular, the children had
indicated the following to their lawyer:
- They did not want to return to Canada because they did not want to be
separated from their mother;
- They had minor violence inflicted on them by their father with spoons
when they refused to eat at the table;
- Maximilian stated that if he had to return to Canada, his life would be
over;
- Josephine expressed embarrassment for having to share a bed and
bath with her father.
The Court recalled how the Court of Appeal had ruled that a preliminary hearing
to hear the views of the child would serve no purpose. The children had been
appointed a lawyer to convey their wishes and had duly reported their wish not
to be separated from their mother.
The Court of Appeal had ruled that the facts mentioned by the children were no
longer of relevance and could not be said to characterize a future danger so as
to place them in an intolerable situation while under the care of their father.
The Court ruled therefore that the Court of Appeal had given sufficient
considerations as to whether the views of the children alone could suffice to
dismiss the return application. The objections of the children could not justify the
rejection of a return and the exception was unfounded.
CA Grenoble,
29 mars 2000,
M. v. F.
The parties were never married but lived together.
They had a baby girl, born in 1993 in Rome (she
was 6 at the time of the alleged wrongful removal).
She had lived in the United Stated for the majority
Appeal
dismissed.
The removal
was
None
Mother’s Grounds of Appeal
1. In order to give grounds to her appeal, the mother stated that the order
made by the Superior Court of California on September 14, 1996 was in
105
Case
(Grenoble
Court of
Appeal)
Facts
of her life.
The parents separated. In December 1995, a court
had ordered that the child be in the care of her
mother. However, in September 1996, after the
child had twice been unilaterally removed by the
mother, the Superior Court of San Diego,
California, granted physical custody to the father
and access to the mother. Both parents were
barred from removing the child from the jurisdiction
of the court without the consent of the other or
order of the court.
In June 1996, the mother took the child to France.
The father filed a request to obtain immediate
return of the child to the U.S.
Held
Weight
Given to
Child’s
Objection
wrongful
and a return
was
ordered.
None of the
exceptions
argued had
been proven
to the
requisite
standard.
Important Statements & Reasoning
violation of Article 14 of the French Civil Procedure Code as it had been
made in her absence and that the order had not been served to her so
she could not appeal it.
2. The mother claimed that the child risked exposure to physical or
psychological danger or an intolerable situation for the following
reasons:
- That the separation would be intolerable for her and her
daughter;
- That the father lived with a Brazilian woman and has a child with
her and may take her to Brazil, which is not a signatory of the
Hague;
- That the child has no family in the U.S.; and
- That the father is unstable having spent 6 months in South
America and had even asked to leave to take the child to Brazil
or the Ivory Coast.
On February 17, 2000, the Family Court of
Grenoble ordered the return of the child. On
February 18, 2000, the mother was given leave to
make an emergency appeal.
3. The mother claimed that the child had reached an age and maturity
where her opinion should be taken into account and argued that a social
welfare inquiry should be ordered to hear the child and obtain
information about her situation.
The mother also noted that the child had been living in France for nine months
with her, that she was in primary school and that her father forbid her form
going to a French School, that she is remarried and the child lived in a protect
environment with other siblings, that she benefited from medical insurance that
was not available in the U.S. , that she was free to take care of the child, unlike
the father and that the father had never satisfied his undertaking to pay for her
rent and support.
Father’s Position on the Child’s Objections
The father opposed the hearing of the child, which had not been requested from
the first judge. He said that the child was too young to be heard and had been
106
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
pressured by the mother.
Wrongful Removal
The Court stated that the father had custody of the child and that the mother
was not given permission to take the child to France. The abduction was
wrongful.
Psychological/Physical Harm & Intolerable Situation
The Court concluded that there was no immediate grave risk that the return of
the child would expose her to a physical or psychological danger or place her in
an intolerable situation. The child had lived with the father since September
1996 and there was no evidence to support this. The child’s school records
indicated that when the child was with the mother, she missed school or arrived
late, and picked up her daughter late.
Child’s Objections
The Court of Appeal concluded that there was not an “opposition” of the child to
a return. The child only showed a preference of living in France, which did not
constitute a true opposition to her return.
GERMANY
Case
Facts
11 UF 121/03,
Oberlandesgeri
cht Hamm
The application related to two children, a boy
born in 1990 and a girl born in 1992 (13 and 11
at the time of appeal).
(Higher
The parties were separated. The father was
Held
Appeal
dismissed
and return
ordered; the
removal was
Weight
Given to
Child’s
Objection
No weight
Important Statements & Reasoning
Child Objections
The Court stated that while there was evidence that the children did not wish to
return to the UK, the Court ruled that this was not sufficient to overturn the ruling
of the trial court. The Court noted that it was the mother’s duty to prepare the
107
Case
Facts
Held
Regional Court)
British and the mother was German. The children
were living with the mother in the UK when the
mother took them to Germany.
wrongful
and none of
the
exceptions
had been
proved to
the standard
required
under the
Convention
Appeal
allowed and
the return
ordered.
The Court
found that
the father
had a right
of veto over
the removal
of the child
from the
jurisdiction
and given
that he was
exercising
access
rights, it was
ruled that he
would have
exercised
this
custodial
right had it
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used].
The father petitioned for their return. The German
trial court issued a return order. The mother
appealed.
10 UF 753/01,
Oberlandesgeri
cht Dresden
The parents married in the United States and
lived together in Florida. Their daughter had both
German and U.S. Citizenship.
(Higher
Regional Court
appellate level)
The child, a girl, was 10 years old at the date of
wrongful removal. Prior to the removal, she had
lived in Florida with her mother.
In March 2001, the parents entered into an
agreement whereby the parties would have joint
custody and the mother would have primary care
of the child with the father having generous
visitation rights. In addition, both parents were
obliged to inform the other 60 days before any
move from their current residences in Florida. In
June 2001, the mother took the child to Germany
without informing the father. In October 2011, the
father filed an application for the child’s return.
On November 23, 2011, the Family Court
(Familiengericht) of Dresden dismissed the
application, finding that there had been no
wrongful removal since the father had not
exercised his custodial rights since August 2000.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
children for the return as well as to explain to them why it was happening.
No weight
Rights of Custody
The mother’s rights to determine the child’s place of residence were restricted
by the terms of the custody agreement. The Court found that she had breached
the father’s rights when she left Florida without his consent. By exercising his
visitation rights, the father was also deemed to have been exercising his
custodial right.
Grave Risk
The Court held that the mother could avoid any risk of psychological or physical
harm to the child by accompanying her daughter on the return.
Objections of the Child to a Return
The court held that the child’s objection to being returned was not to be
considered in the return procedure but only in the subsequent custody
procedure in the USA.
108
Case
Facts
The father appealed.
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Weight
Given to
Child’s
Objection
No weight
Important Statements & Reasoning
not been for
the
unilateral
nature of the
removal.
The removal
of the child
was
wrongful.
ICELAND
Case
M v. K.,
12/12/2000,
(Iceland
Supreme
Court)
Facts
The parents were married and lived together in
Norway until 1998. The mother then moved to
Iceland with the parties’ three children, the oldest
boy being 11 years old.
In 1999, the parents separated and agreed to have
joint custody of the children, with the two youngest
to live with the mother in Iceland and the eldest
boy, at his own request, to live with the father in
Norway. In the summer of 2000, the eldest boy
went to visit his mother in Iceland and the mother
refused to allow the son to return to Norway. The
father requested the return of the child.
The mother subsequently instituted proceedings
against the father in Iceland to invalidate the
agreement on joint custody of the children.
Held
Appeal
allowed and
return
ordered.
The
Convention
was
applicable
and the
retention
was
wrongful.
Article 13(2)
had not
been proved
to the
standard
Objections of the Child
The Court noted that the lower court had interviewed the child before they made
their ruling. The Court had found that the boy did not take a decisive stance on
the matter and did not want to choose between his parents. Further, he had no
objections to going to Norway or living there. On this basis the court found that
the exception had not been made out.
The Decision of the District Court of Reykjavik (October 13th 2000)- The case
needed to be read to provide some context for the appeal:
B’s Objections
109
The boy had spoken to his father after he had been removed and told
him that he would not return to Norway
The father went to Iceland and repeatedly tried to have the boy go back
Case
Facts
Held
Weight
Given to
Child’s
Objection
required.
Important Statements & Reasoning
to Norway with him, but he would not
In October 2000, the District Court of Reykjavik
refused to grant a return order on the basis that
the Convention was not applicable and also
because it found that the child objected to a return
in Norway. The father appealed the District Court’s
decision to the Supreme Court of Iceland.
A social worker spoke with B and her statement noted the following:
- B talked about his school in Norway and said it would be nice to be
there
- He said he wanted to stay in Iceland to be with his siblings and because
there was always something going on
- The social worker saw B between his parents when they were arguing
and asked him about it. He said that he did not want to think about why
they did so.
- The social worker concluded that she did not want to take a position on
whether it was appropriate to transfer the child from his father to mother.
She said that she needed to examine the case in more details and know
more about the child’s adapting in Norway.
A report from a Norwegian psychologist stated the following:
- B missed his sister
- B needed to experience stability and a new change in circumstances
would be unfortunate for him.
The father claimed that B wanted to stay in the country primarily because he
wanted to be with his siblings. He felt that the boy was strongly influenced by
his environment, including his mother, and was under great stress.
M v. K. ,
20/06/2000,
(Iceland
Supreme
Court)
The father was a Spanish citizen and the mother
was an Icelandic citizen. The parties lived in Spain,
they separated in 1998 and divorced in 1999. They
had two boys, aged 10 and 13, who lived with their
mother after separation and the divorce.
The mother had some custody rights, “custodia”
and “cuidado”, but other custody rights, notably,
“patria potestas”, were shared by the parents (i.e.
It stated that the children should be supervised by
Appeal
allowed and
return
ordered; the
removal was
wrongful
and none of
the
exceptions
have been
No weight
Letters from Spanish Judge and Information on Spanish Family Law System
The Supreme Court received a letter from the Spanish Ministry describing the
legal meaning of the terms used in the parties’ custody order (i.e. care, control
rights and parental authority). The letter indicated that the mother was not
entitled to make the unilateral decision of where the children should reside. It
set out the Spanish position clearly- the removal of the sons from Spain had
been a breach of custody rights.
The Court found that the Patria Potestas held by the father did indeed amount
110
Case
Facts
Held
the mother, but the parents had joint parental
authority over the children and in particular, their
development, health and education). The Order
stipulated that the parties would be able to move if
they gave one another at least 20 days’ notice.
proved to
the standard
required
under the
Convention.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
to rights of custody for the purpose of the Convention. The unilateral removal of
the children breached his right and was therefore wrongful.
Child Objections
The mother raised the issue of objections made by her sons to psychologists
which indicated that the children wanted to remain in Iceland.
The mother took the children to Iceland in
September 1999. In November 1999, the father
requested the return of the children through the
Spanish Central authority. On April 19, 2000, the
District Court of Reykjanes refused to order the
return of the boys. The mother had claimed to
have sole custody which enabled her to decide
where the children should reside.
The Court noted the following statements by the eldest son:
- He wanted to live in Iceland when asked whether he wanted to live in
Spain or Iceland.
- He had a positive attitude towards both Iceland and Spain. However, he
wanted to live with his mother, in comparison to his father who traveled
a great deal for work and was often not home.
The father appealed to the Supreme Court of
Iceland. Leave was given for the submission of
further evidence, including a psychiatrist’s report
regarding the views of the younger child and
statements from a Spanish judge and from the
Central Authority in Spain regarding the Spanish
law on custody.
The opinion of the psychologist about the youngest boy stated that:
- The boy preferred Iceland over Spain. It was likely that where he
wanted to live was heavily influenced by where his mother chose to
reside.
The Supreme Court stated that the objections would be considered if the
children had attained an age and degree of maturity in which it was appropriate
to take into account their position. They noted that the psychologist opinion
made it clear that the sons were not opposed to living in Spain, but wanted to
live with their mother. The Court found that the exception had not been proved.
IRELAND
Case
T.M.M. v. M. D.
[Child
Facts
The children were 10 and 5 at the date of their
wrongful removal. They had lived their entire lives
Held
Appeal
dismissed-
Weight
Given to
Child’s
Objection
Strong
weight
111
Important Statements & Reasoning
Grounds for Appeal
Case
Facts
Held
Abduction:
Article 13)
[2000] 1 IR
149
in the England. The parents separated shortly
before the children’s removal and both had rights
of custody. Both parents had a history of alcohol
abuse, and as a result, spend long periods of time
in their maternal grandparents care.
the removal
was
wrongful but
the return
was refused.
(Supreme
Court)
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The mother raised a number of grounds of appeal. In terms of the child’s
objections, she specifically submitted that the interviewing of the child by the
trial judge and her reliance on the same ground to refuse the return of the child
was inappropriate and was an error of law and fact. It was further argued that
the use of unsworn evidence obtained in the absence of legal representatives of
the parties, in particular the mother, where the information was not revealed in
front of the parties and where there was no corroboratory evidence and which
was prejudicial on the mother was an error in fact and law.
In October 1997, the children were removed from
the care of the mother by their maternal aunt. This
was in response to the mother drinking heavily.
That same month the grandparents took the
children to Ireland. In March 1998, the mother
issued Convention proceedings.
The Court of Appeal stated that the trial judge had discretion and it was “entirely
appropriate” for the trial judge to have interviewed the child. The judge did not
err in law by relying on the interview with the child “The convention is quite clear
on its face that a child who objects to being returned and who has attained an
age and degree of maturity is entitled to have his or her views taken into
account. The learned trial judge addressed specifically the age and maturity of
the child and her views. Consequently, the learned trial judge was entitled to
rely upon the child’s views as she did”.
The trial judge made the following statements
about the child’s objections after she interviewed
the child:
- It would be wrong for the court to reply on
K’s opinion. She was a young child, though
she did seem intelligent and mature for 11
years of age.
- The child had not been coached.
- She did not want to go into all of the details
of the children’s views but said: K did not
merely object to returning to England and
to custody of her mother, she exhibits a
fear of doing so; she was happy with her
grandparents and her new school; she
appreciated her stability and feared losing
it.
The trial judge concluded that a return to England
would pose a grave risk of physical and
psychological harm to the child and place her in an
intolerable situation. She also took into account the
112
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Held
Weight
Given to
Child’s
Objection
None
Important Statements & Reasoning
child’s objections.
The mother appealed the decision of the High
Court.
ISRAEL
Case
P. v. P., Leave
for Family
Appeal
2338/09 P. v.
P.
(Supreme
Court)
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used].
Facts
The mother was Israeli and the father was
Peruvian. The parties resided in Israel on the
kibbutz for where the mother had grown up with
their son for five years, and then they moved to
France.
After a year and a half in France, when the mother
was at an advanced stage of pregnancy, the
mother returned with the child to Israel with the
father’s consent. The father followed shortly
afterwards. After the birth of the second son, the
father applied for the return of the older son under
the Hague Convention. The father conceded that
the Convention did not apply to the new born.
The mother claimed that the trip to France had
only been for the purpose of checking out
employment opportunities there. However, once
they were there, the husband refused to return to
Israel even though he did not work and they were
financially dependent on the maternal
grandmother. The mother explained that she had
Appeal
dismissed
and return
order
upheld. The
retention
was
wrongful
given that
the child had
been
habitually
residence in
France at
the relevant
date. None
of the
exceptions
had been
established
to the
standard
Habitual Residence
The child had been living in France for 18 months from the age of 5 and had
established a regular daily routine including attendance at an educational
establishment and participation in extra-curricular activities. Furthermore, the
parties’ intention to set up their home in France was evidenced by the fact that
the mother had accepted departure money from the kibbutz of which she was a
member, after her request for two years leave of absence had been rejected.
The Court concluded that the child’s habitual residence was in France.
Acquiescence
Neither the father’s consent or acquiescence was proven.
Grave Risk
The Court held that the accusations against the father were not established and
that, on the basis of expert opinion, there was no evidence that a return to the
father would cause the child harm.
In relation to the separation between siblings, the Court referred to a number of
English decisions. The Court took the view that there was no room to create a
113
Case
Facts
Held
taken departure money from the kibbutz in order to
support he family during the trip to France and not
because she intended to leave for good.
required
under the
Hague
Convention.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
rule that separations of siblings would automatically prevent return since this
would nullify one of the purposes of the Convention, which was that the
abducting parent should not benefit from his actions. While this claim could be
legitimate in some circumstances, this was not proven in the case. The correct
forum for considering the implications of such a separation was the French
Court.
The mother claimed that the parties had decided to
move back to Israel because they could not
support themselves in France. However, the father
claimed that the trip to Israel was only for the
purpose of giving birth (because the mother had
no medical insurance in France).
Objections of the Child
Justice Jubran rejected the mother’s claim that the child’s opinion should have
been heard directly by the court and that failure to do so was in contravention of
Article 12 of the Convention and the Israeli civil procedure regulations.
The mother also claimed that an order for the
child’s return would cause the child harm and that
he objected to the return. She stated that the child
had not settled in France socially, was bullied at
school and was unhappy there. She claimed that
the father had abused her and the child. She
alleged that he had not handed over the money to
her that was sent by her mother and that she had
not been able to provide the child with his basic
needs. Most of the time, they had slept on
mattresses in friends’ apartments. She also
claimed that the separation from his younger
brother would harm him. She argued that she
could not return to France because she did not
have resident status there.
Justice Jubran held that the child’s views had been put before the court in the
psychological report and the opinion of the Welfare Officer and that it was clear
that the objections exception was not established both because the child was
not sufficiently mature and because his objection was weak and not clear.
Furthermore, in considering whether to hear a child directly, it was necessary to
weight the advantages against the harm that it might cause.
The other two judges, while agreeing with the conclusion that the child’s
objection was not established, held that the child ought to have been heard
directly by the judge. They emphasized the advantages of a direct hearing and
stated that in the case of doubt, the child should be heard directly.
The Family Court judge held that it was not
necessary for him to hear the child directly, but
ordered a psychological report. On the basis of this
report, he held that none of the exceptions applied
and ordered the return of the child to France
subject to various undertakings.
114
Case
Facts
B. v. G.,
Supreme
Court 8 April
2008
The District Court upheld the decision on appeal
and the mother appealed to the Supreme Court.
The application related to a boy born in January
1999 to a Belgian non-Jewish father and an
Israeli/French Jewish mother. The parties lived in
Belgium. Divorce proceedings were issued in June
2002 and in July 2002 the mother was granted
custody.
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used].
In January 2004 the mother was given permission
to relocate to France and she moved there with the
child in March 2004.
The father appealed against the custody award
and on November 22, 2005 a court of appeal in
Belgium ordered that starting on January 3, 2006,
the child should live with the father in Belgium.
On January 4, 2006, the mother took the child to
Israel where she and the child adopted an ultraorthodox way of life. The father initiated return
proceedings in Israel in December 2006.
Held
Weight
Given to
Child’s
Objection
Appeal
dismissed
and return
ordered
subject to
conditions.
The removal
as wrongful
and none of
the
exceptions
had been
established
to the
standard
required
under the
Convention.
N/A
Important Statements & Reasoning
Exceptions
Justice Procaccia, giving the leading judgment, reiterated the need to interpret
the exceptions in the Convention very narrowly so as not to undermine the
objective of rooting out the evil of international child abduction and of not
rewarding abducting parents.
The Supreme Court judgment solely dealt with the grave risk of harm exception
On April 25, 2007, the Court of Family Matters in
Beersheva made a return order and rejected the
mother’s claims that the child would face a grave
risk of harm or that he objected to a return. With
regard to the child’s objections, the court found the
child to have a degree of maturity at which it was
appropriate to take his views into account.
However, the Court held that the objections were
not substantive, thought out or based on clear
arguments in respect of the father’s actions
towards him. The Court further accepted the views
115
Case
Facts
Held
Weight
Given to
Child’s
Objection
of the psychologist that the child’s objections were
not possibly based on his own views and were
influenced by the mother. The Court held that
Article 13(2) had to be construed narrowly and
only accepted where all doubts had been removed
regarding factors influencing the views of the child.
The mother appealed to the District Court and her
appeal was dismissed. However, the Supreme
Court, allowing her appeal in August 2007ordered
that the case be remitted to the District Court to
enable the child to be heard directly by that court
and for a further expert psychological opinion to be
obtained.
The District Court, finding that despite the obvious
strength of his objections, the boy was not
sufficiently mature and his views were not
independent, remitted the case back to the Family
Court to consider whether a grave risk of harm
existed.
The Family Court requested clarification on the
expert opinion. The latter stated that the return of
the child to a completely different social and
cultural environment in Belgium without the mother
would be a catastrophe for him and that there was
even a risk that he would become suicidal.
However, the opinion stated that despite the child’s
excellent acclimatization in Israel, remaining in
Israel would be harmful in the long term since he
would lose all contact with his father. The Family
Court held that while there was a grave risk of
harm in returning the child, the option of leaving
116
Important Statements & Reasoning
Case
Facts
Held
Weight
Given to
Child’s
Objection
Leave to
appeal
refused and
return order
confirmed.
The removal
was
wrongful
and the
objections of
the children
to a return
did not
satisfy the
No weight
Important Statements & Reasoning
him in Israel was no better and so made a return
order.
In the hope that the mother would agree to return
with the child, the court made various conditions
including requiring the father to agree that the child
would be in her temporary custody in Belgium and
to obtain assurances from the prosecution
authorities that she would not face criminal
changes.
The District Court, in a majority decision,
dismissed the mother’s subsequent appeal. The
dissent had focused mainly on the risk that the
child might attempt suicide if returned to Belgium.
Them mother appealed again to the Supreme
Court.
Appl. App.
Dist. Ct.
672/06
(Supreme
Court)
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used]
The application related to two children, a girl aged
12 and a boy aged 9 1/2. The Israeli-Italian father
and Italian mother initially lived with their children
in Italy. In 1997, the family moved to Israel.
In July 2002, the mother took the children to Italy
for a vacation and then remained with them there.
The father petitioned for the return of the children
but this was denied on the basis of Article 13(1)(b).
In July 2005, an Italian court granted the mother
custody of the children and the father access. In
September 1005, at the end of a period of contact,
the father took the children back to Israel. In
October 2005, the mother issued return
Objections of the Children
The Court held that in accordance with other exceptions, Article 13(2) had to be
interpreted very narrowly; consequently it could only apply in extreme cases.
In Considering the construction of Article 13(2) the Court held that both the
components of age and degree of maturity had to be met for the child’s desire
to be taken into account. That desire had to be of substantial intensity. A mere
preference to remain with the abducting parent and not to return to the place of
habitual residence would not be sufficient. It had to be shown that the objection
to being returned was deeply felt and based on material, stable and reasonable
grounds.
The Court noted that the psychiatrist who evaluated the siblings found them to
117
Case
Facts
proceedings.
Held
Weight
Given to
Child’s
Objection
standards of
Article 13(2).
have only partial understanding and to see events only in short term. The Court
concluded that it was not established that the children had an independent
desire not to return. The Court noted the pressure put on the children by the
father and the extended family, primarily through being provided with every kind
of favour and benefit. This confused the children and made them unstable and
unable to form a mature view as to their future.
On December 8, 2005, the Beersheva Family
Court found that the siblings objected to returning
to Italy and refused the return.
On January 12, 2006, the Beersheva District Court
upheld the mother’s appeal and ordered that the
child be returned. The father sought leave to
appeal to the Supreme Court.
Family Appeal
621/04 D.Y v.
D.R
(Jerusalem
District Court)
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used]
The case concerned 5 children, all girls, born in
1990, 1992, 1994, 1995 and 1999. The parents,
who were married, were Hassidic Ultra-Orthodox
Jews.
In 1998 the family emigrated from France- first to
Israel and then to the United States. In 2000, the
father abducted the two youngest girls to France,
but after three months they were returned following
Hague Convention proceedings.
Shortly after, the couple signed an agreement
which was approved by the Court of Family
Matters in New York. The agreement provided that
as long as the parties remained separated the
mother would have sole custody and the father
would have supervised visitation. The father was
also required to surrender his passport to the
supervisor during access visits.
In May 2002, the mother and girls went to Israel
without the permission of the father. In September
Important Statements & Reasoning
The Court noted that the previous facts of the case, the original abduction and
the rejection of the father’s return petition, did not detract from the obligation of
Israeli authorities to adhere to the provisions of the Convention according to its
word and spirit. One act of abduction did not justify a counter act of abduction.
Appeal
dismissed
and return
refused. The
removal was
wrongful but
the
exceptions
in Article
13(1)(a),
13(1)(b) an
13(2) had
been made
out. In
addition, the
father’s lack
of good faith
barred him
from
receiving the
court’s
assistance.
Moderate
weight
Acquiescence
The fact that the father had not seen the girls for the past year and a half, even
though he had the opportunity to do so, was held to be acquiescence.
Grave Risk
The Court distinguished the present case from that of Ro v. Ro in which a very
high threshold had been set for the exception in Article 13(1)(b). In the latter
case, the applicant father had undertaken not to have any contact with the child
and it was accepted that the authorities in England could be relied on to protect
the child. In the present case, the potential harm to the girls derived from their
being in the U.S. and not just from contact with their father.
Objections of the Child
In determining the age at which it was appropriate to take into account a child’s
wishes, Justice Drori (writing for the majority) referred to sources of Jewish law
in relation to the age at which a minor’s oath was valid- 12 for girls and 13 for
boys. Thus, in accordance with the impression of the judges and the
psychologist, the older two girls’ objections should be respected. The Court then
ruled that separating the girls would cause the younger ones psychological
118
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
2002 the father, who was living in France, started
proceedings for the return of the girls to the U.S.
based on the Hague Convention.
damage, consequently none of the girls should be returned.
The father’s application was dismissed on the
basis that he did not have custody rights. In
addition the court expressed the opinion that a
return would place the girls in an intolerable
situation because they had no roots in the U.S., no
financial support, the father was not seeking
custody and the mother was liable to be
imprisoned for abduction.
The Court held that under Israeli law the doctrine of good faith applied to all
legal activities including proceedings under the Hague Convention, even though
the doctrine was not mentioned in the text of the document. In accordance with
the doctrine, in exceptional cases a court which finds an applicant has acted in
bad faith, can decide to refuse assistance.
Issues Relating to Return
In the present case the court found that the father’s denial of paternity, which it
was not possible to determine under Israeli law within a return application, was
an act of gross bad faith. Consequently he could not receive the assistance of
the court.
The father’s appeal to the District Court was
dismissed but his appeal to the Supreme Court
was allowed on the basis that the evidence
showed that under New York law a custodial
parent is not permitted to remove children from the
jurisdiction without the permission of the other
parent or the court, and thus there had been a
break of the father’s custody rights within the
meaning of Articles 3 and 5 of the Convention. The
Supreme Court referred the case back to the
Family Court to consider in detail whether any of
the exceptions to return were applicable.
The father’s non-payment of support and his previous abduction of two of the
girls was not however bad faith.
The clinical psychologist appointed by the Family
Court found that the return of the girls would
expose them to server psychological harm in light
of the various traumatic upheavals they had
already suffered. In particular, they had not been
accepted by the Hassidic community in New York,
had not established any connections with New
York and their experiences there had been
119
Case
Facts
Held
Weight
Given to
Child’s
Objection
Appeal
dismissed
and return
refused. The
removal was
wrongful but
a grave risk
of harm, in
accordance
with
Article13(1)(
b), had been
established
to the
standard
required
under the
Convention.
Minimal
Important Statements & Reasoning
negative and traumatic. In addition, the inability of
the mother to support the family in New York
would place them in an intolerable situation. For
these reasons, in September 2004, the Family
Court in Jerusalem found that Article 13(1)(b) had
been made out. In addition, the Court ruled that
the Article 13(2) exception had been established in
respect of the oldest girls. It further held that the
father had not acted in good faith because he had
not paid support and had questioned the paternity
of the girls. The father appealed the District Court
decision.
R v. L, 1169/99
(Tel-Aviv
District Court)
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used]
The child, a boy, was 10 at the date of the alleged
wrongful removal. He spent his entire life in the
United States.
The parties divorced and share custody; however,
there were repeated proceedings as to the nature
of custody. In December 1995 and July 1998, the
child was hospitalized in the Oakland Children’s
Hospital psychiatric ward as a result of depression.
In August 1998, the mother travelled to Israel with
the child to see the child’s maternal grandmother.
She relied on a court order permitting her to travel
to her family in cases of emergency. The father
subsequently obtained an emergency order
requiring the immediate return of the child. The
mother brought back the child to California.
Child’s Objections
The District Court accepted the Family Court’s finding that the child been
brainwashed by the mother and suffered from Parental Alienation Syndrome.
His objections to a return could therefore only be given minimal consideration.
Regardless, the intensity of the child’s objections were such that the mother
argued that he had threatened to commit suicide if returned to the U.S. to the
custody of his father.
Risk of Harm
The District Court accepted the psychiatric evidence presented at the trial court
that while there were clearly psychological dangers for the child if separated
from the father, such dangers were not as immediate and actual as those
involved in returning him to the U.S.
Reference was made to a meeting after the trial at which the child completely
rejected the father and the father was unable to contain the child’s anger.
On February 13, 1999, the mother’s request to
relocate with the child to Israel was dismissed and
the father was granted full custody. On February
The District Court upheld the Family Court’s conclusion that although the
120
Case
Facts
Held
Weight
Given to
Child’s
Objection
14, 1999, the mother removed the child to Israel.
Important Statements & Reasoning
mother would benefit from her actions, there was no option other than to hold
that the defence of grave risk was made out and that the child should remain in
Israel.
In November 1999, the father’s return petition was
rejected by the Ramat Gan Family Court on the
basis that Article 13(1)(b) exception had been
made out. The father appealed to the District
Court.
MEXICO
Case
Facts
Held
Procedure for
International
Return of
Children,
Case No.
2926/2008
instituted by
J.V.U.B.
The children, aged 7 and 9, resided in Venezuela.
Upon their parents’ divorce, it was agreed that they
would live with the mother, but the father would
enjoy visitation rights.
Appeal
allowed and
a return was
ordered.
The court
stated that
none of the
objections
had been
met.
(Third Family
Court of the
Honourable
High Court of
Justice of the
Federal
District)
[Full case not
available on
In 2008, the father gave permission for the children
to travel with the mother to Mexico to visit with
their grandparents for 10 days. However, the
mother did not return with the children at the end
of the visit, claiming that she had lost their
passports. The father requested the return of the
children.
Weight
Given to
Child’s
Objection
Little –
merely
cultural
objections
Important Statements & Reasoning
The aims of the Convention
-
To re-establish the status quo by means of the immediate and safe
return of children wrongfully removed in any other Contracting State.
Contracting States must guarantee respect for custody and access
rights existing under the law of the child’s state of habitual residence.
Return does not imply a change to the previous custody situation, the
Convention is a remedy separate from substantive issues of custody.
Under the Convention, the best interests of children is achieved by their
immediate and safe return to the habitual residence and this may only
be denied when the exceptions foreseen by the Convention are clearly
proven.
Re: Child’s Objections
A family judge of the Federal District refused to
make an order on the basis that the mental and
emotional state of the children could be
endangered if they were sent back and in light of
their objections to the return. The father appealed.
While children must be heard, the contents of their opinions cannot be
determinative of the issue of return. Given that the children’s objections were
focused on the political demonstrations taking place in Venezuela, the Court
held that their reasons did not provide a sufficient basis for failing to comply with
121
Case
Facts
Held
Weight
Given to
Child’s
Objection
INCADAT or
online.
INCADAT
summary
used]
Procedure for
the Return of
Child, Case
No. 1313/2007,
instituted by
A.C. B.I.
against
P.R.I.P
(Ninth
Chamber
Supreme
Court of
Justice of the
State of
Jalisco)
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used]
Important Statements & Reasoning
the objectives of the Convention.
On the other hand, the children’s desire to remain in Mexico should be asserted
before the judge of their state of habitual residence, taking into account the
nature of their objections, which in the present case were unquestionably
influenced by cultural reasons.
The parties divorced in Switzerland. Pursuant to
their agreement, the mother was to have custody
of the parties’ daughter. The father had access,
whereby he would have the child for four weeks of
the summer, alternate Christmas vacations and
half of all other school vacations.
The father returned to Mexico. Following an
access visit, the father retained the girl, claiming
that she wishes to remain with him. There were
allegations of the existence of imminent physical or
psychological danger or the possibility of exposing
the girl to an intolerable situation.
Appeal
allowed and
return
ordered.
None of the
exceptions
had been
established.
None- the
child was
too young
Settlement of Child
The Court of Appeal noted that the trial judge was not entitled to consider the
issue of settlement and should have ordered the return of the child forthwith
because the return proceedings had commenced before the expiry of the 12
month time limit. It was irrelevant that the child had been living in Mexico for two
years by the time the judgment was handed down.
Grave Risk
The court understood that the opposition to the return and the mere allegation
of the existence of an imminent physical or psychological danger or the
possibility of exposing the child to an intolerable situation were not enough. The
extremes foreseen by Article (1)(b) of the Convention must be proven by the
party that invokes them.
The mother contacted the Swiss Central Authority
requesting the return of the child.
The Court further noted that experts, whether psychologists, welfare workers or
professionals of the Custody Department of the Family Court Council of Jalisco,
had no legal standing to oppose the return of an abducted child. The opinions of
such experts did not constitute proof, all the more so since in the present case
they had made no reference to any physical or psychological danger or to any
intolerable situation.
The family judge of the First Judicial District
declined to order the return of the child on the
basis that it would be detrimental to her since she
had become integrated into her new social
environment and had stated a clear objection to
her return. The mother appealed. `
Child Objections
The Court noted that under Article 582 of the Civil Code of the State of Jalisco
only the views of children aged over fourteen would be considered. In the
122
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
present case, the girl was ten years old and was not mature enough to express
an opinion of matters of such importance.
The mere allegation of danger of imminent physical or psychological danger or
the possibility of exposing the girl to an intolerable situation was not enough.
The extremes foreseen by Article 13(1)(b) must be proven by the party that
evokes them.
NETHERLANDS
Case
Facts
Held
De directie
Preventie,
optredend
voor zichzelf
en namens Y
(de vader /the
father) against
X (de moeder/
the mother) (7
February
2001, ELRO
nr.AA9851
Zaaknr:813-H00)
The parents were married in Canada and had their
son, who was 9 ½ at the date of the alleged
wrongful removal. He had lived in Canada all of his
life.
Appeal
dismissed
and the
return of the
boy refused.
The removal
was
wrongful but
the standard
under Article
13(2) had
been met to
show that
the child
objected to
the return.
(Gerechtshof’
sGravenhage,
Apellate
The parents separated in 1994. Subsequently, the
mother was awarded custody and the father was
granted access. In October 1999, the mother
applied to a Quebec court to change the access
regime. In June 2000, the mother signed an
agreement not to leave Canada before a decision
was made. 4 days later the mother took the boy to
Holland.
In October 2000, the Rechtbank’s Gravenhage
(juvenile judge) refused to order the return of the
boy. The father appealed.
Weight
Given to
Child’s
Objection
Strong
weight
Important Statements & Reasoning
Rights of Custody
The mother argued that since she had been rewarded custody of the child, she
had the right to determine his place of residence. The court rejected this
argument given that the proceedings were underway in Quebec to consider the
issue of custody and access and the mother had signed the separation
agreement not to leave the country before a final decision was made.
Grave Risk
The Court found that there was a grave risk to the return of the boy as he would
be exposed to physical or psychological harm or be placed in an intolerable
situation. This was because the mother would not be able to return to Canada
because she had no means of support there. Consequently, the boy would have
to return alone and the separation from his mother would cause him harm.
Objections of the Child to a Return (para. 6)
The child was heard by the court in a private hearing. The Court stated that the
123
Case
Facts
Held
Weight
Given to
Child’s
Objection
Court)
Important Statements & Reasoning
child showed that he was very closely bonded to his mother. The child was
capable of expressing his opinion and indicated that he wanted to continue to
live with his mother in the Netherlands and did not want to go back to Canada.
On the strength of his objections, the court exercised its discretion under Article
13 (2) not to order his return.
NEW ZEALAND
Case
White v.
Northumberla
nd [2006]
NZFLR 1105
(Court of
Appeal)
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used]
Facts
The application related to a boy in 1995. The
parents separated in 1997 and thereafter the boy
continued to reside in the former family home with
the mother and had regular contact with the father.
In 2003 the mother sought and was granted leave
to relocate to New Zealand, but this was made
subject to conditions. In breach of those conditions
the mother unilaterally took the boy to New
Zealand in October 2004. The father issued a
return petition.
On March 13, 2006, the Family Court issued a
return order, finding that the removal had been
wrongful and that the boy’s objections did not
satisfy the standard required by Article 13(2) of the
Convention. On May 30, 2006, the High Court
dismissed the mother’s appeal. The mother
petitioned the Court of Appeal for leave to appeal.
Held
Appeal
dismissed
and return
ordered.
The child’s
objections
did not
satisfy the
standard
required
under Article
13(2) of the
Convention.
Weight
Given to
Child’s
Objection
Little
Important Statements & Reasoning
Objections of the Child to a Return
The Court affirmed that leave to appeal should be granted, there being a divergence
in High Court case law on the issue of the exercise of discretion where the objections
of a child were upheld. This divergence related to contrasting interpretations put
forward by differently constituted panels of the Court of Appeal in England.
For example, Collins v. Lowndes (High Court, Auckland AP 115-SW02, March 6,
2003): Harrison J. had expressed his preference for the Millett “in or out approach” to
the exercise of discretion, while Chisholm J. whose judgment was presently under
appeal, had found in favour of the Balcombe’s ‘shares of grey’ approach’.
Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716. Balcombe wrote for the
majority in the decision, while Millet’s view found favour in a later Court of Appeal
judgment, Re T: (Abduction: Child’s Objections to Return) [2000] 2 FLR 192.
Subsequently in Zaffino v. Zaffino [2006] FLR 410, it was Blacombe’s view which
prevailed.
Having reviewed the evolution of English case law, the Court concluded that the High
Court judge had been correct in following the Balcombe approach (‘shades of grey’).
The Court drew additional support from a revision of the provision by which Article
124
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
13(2) was integrated into New Zealand law. The original statute, the Guardian
Amendment Act 1991 had been replaced by the Care of Children Act 2004. S.
106(1)(d) of the latter replaced “to take account of the child’s views” with “to give
weight to the child’s views”. Although the Court did not find any evidence to justify this
amendment, it speculated that the drafters had been seeking to support the
Balcombe approach which also referred to the weight to be given to the views of
children.
In addition, the Court further endorsed the four point structure Chisholm J. had
employed when considering objections of children:
(1) Does the child object to a return, if so:
(2) Has the child attained a sufficient age and maturity at which it is appropriate
to give weight to his views? If so:
(3) What weight should be given to those views: And:
(4) How should the residual statutory discretion be exercised?
Discretion: General Welfare Considerations
It was argued for the mother that general welfare considerations were relevant when
a court came to exercise its residual satisfactory discretion. The Court accepted that
consideration had been given to welfare maters in Zaffino, but it submitted that what
the English Court of Appeal had in mind was welfare up to the period when a
substantive custody hearing could take place to determine where the child should
ultimately live.
The Court reiterated the summary nature of the Convention proceedings and that
these were not concerned with where the child should eventually end up living. It
specified that welfare considerations relevant to the latter question did not arise on
what was essentially an inquiry as to the better forum for determining that question.
The Court concluded that there was no general welfare reason militating against the
return of the boy to England. The appeal was therefore dismissed.
B. v. C., HC
The case related to a boy who was aged 13 at the
Appeal
Significant
125
English High Court’s Dismissal of Husband’s Return Application
Case
CHCH
AP36/01 [24
December
2001]
(High Court at
Christchurch)
Facts
date of the alleged wrongful retention.
The parents were married. The father, a UK
citizen, adopted the mother’s two children of a
previous relationship. The family move to New
Zealand in 1993. In February 1998, the parents
separated and the father left the family home.
In February 1998, the mother unilaterally removed
all of the children from New Zealand to England. At
this time the boy was 9. The father instituted return
proceedings, but the application was dismissed in
June 1998. After this, there were several hearings
in the High Court in London with regard to access.
The boy went to New Zealand on several
occasions in 1999 and 2000. A further order was
made in 2001 allowing the boy to spend 24 days in
New Zealand in July. The boy went to New
Zealand and was due to returned on August 17,
2001. He did not return. The mother issued
proceedings. In October 2001, the New Zealand
Family Court refused the mother’s application. The
mother appealed.
Held
dismissed.
The return
was refused.
Article 13(2)
had been
proven to
the standard
required
under the
Convention.
Weight
Given to
Child’s
Objection
weight
(particularl
y because
child had
been
abducted
by mother
before)
Important Statements & Reasoning
There was no transcript of the trial judge’s decision. The High Court noted that it
was likely that the oral judgment of the trial judge had not been transcribed. The
High Court observed that it appeared that the primary reason for the father’s
application to be dismissed was that the children, M and E, did not wish to
return to New Zealand. M was at the time, too old to be the subject of the
Hague Convention application and E was 15 and an objection may well have
been decisive (para. 8).
It was likely that the English judge took the view that returning H to New
Zealand in a situation where M (who could not compulsorily be returned given
his age) and E (who was 15) did not wish to be returned, would have produced
an intolerable situation for H because of the possibility that such a return may
have separated him from his siblings. What stance H took at the time is not
clear. He was nine at the time (para. 9).
Effects of Abduction
The High Court noted that the mother’ successful abduction of H and E in
February 1998 appeared to have damaging consequences as H was the only
child who actively sought to continue a relationship with his father (para. 13).
The Purpose of the Convention
“The underlying purpose of the Hague Convention and the New Zealand
legislation which implements it [i.e. The Guardianship Amendment Act 1991] is
to require the return of abducted children. Article 13 of the Convention and thus
section 13 of the Guardianship Amendment Act which provide defences to
application for the return of children, must not be construed and applied so as to
subvert the fundamental purpose of the Hague Convention” (para. 26).
At the time of the appeal, the child was 13.
Proceedings in Family Court (lower decision)
The judge had the following evidence:
126
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
-
Affidavits from the mother and father (which annexed reports from a
court welfare officer)
Affidavit from the family therapist
Judge heard evidence from the family therapist and also spoke to H
The judge held that H did object to being returned to the UK. In the view of the
judge, his objection was associated with H’s preference for living with the father
over living with the mother, his preference for living in New Zealand over the UK
and for the New Zealand Courts to determine future welfare litigation (para. 29).
The judge made further observations about the child’s objections:
- The child had not come to his decision overnight, but had been carefully
considering it for 18 months. The decision was largely made before he
left England but he chose not to tell anyone (para. 30).
- He believed that his father was more likely to lose the custody case in
England and he was worried that he might not be permitted to return if
the present custodial arrangements were confirmed (para. 30).
- H was of an age and maturity to properly assess the alternatives to
having a case conducted in the UK or New Zealand and that in electing
New Zealand as the option, he has done so for appropriate and wellconsidered reasons (para. 30)
- H was wise beyond his years (para. 30). .
- The Court considered whether the father had influenced the child’s
views and held that H’s views were genuinely his and not the result of
pressure from the father (para. 34). He was able to set aside how his
parents felt and to make decision on his own needs.
- “This is not, therefore, the case of a young man, overcome with sadness
at the end of an access visit, who is influenced by his father to remain.
Instead, it involves a decision taken by H over a long time after
considerable though, for appropriate reasons, and announced in a very
carefully planned manner”.
The judge exercised his discretion to refuse the application. In exercising his
discretion the trial judge focused on two broad issues: (1) the philosophy of the
127
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Convention and (2) the effect on H’s welfare of having the custody issue
determined in one country or the other.
The judge stated that the following factors justified him in exercising his
discretion to permit H to remain in New Zealand:
(1) The impact that the mother’s abduction had on H: The child felt as
though he didn’t get a choice and wanted one now. He also experienced
significant sadness. It was inevitable that he would want to live with his
father. Rejecting his request to remain would be detrimental to him.
(2) Role played by H’s adopted brother and sister in UK Hague Convention
proceedings: The objections to returning to England by H’s two older
siblings were instrumental in determining the UK as the forum for the
custody hearing involving H. The trial judge believed that if he rejected
H’s current views by requiring him to return to the UK that would mean
that he would have less say in determining his own forum than his
siblings.
(3) The role of the mother: The mother abducted the children without
consulting H. The adverse consequences of H being removed from his
father so soon after the parents separation was in the mother’s selfinterest. The issue should have been properly canvassed in New
Zealand where the mother may have been refused permission to take
him out of the country. H observed the mother’s behaviour (keeping her
plans a secret and only announcing them once she left the country) and
did the same. The Court cannot impose a higher standard on him than
his mother.
(4) H’s age: The child was 13 and the next 3 years of development were
important. The Court should no limit his contact with his father during an
important phase of his development.
(5) H will likely be pressured by his mother if he returned to the UK.
(6) The custody order made in New Zealand in the mother’s favour. If she
returned to New Zealand she would be able to resume custody of H.
The mother had the power to care for H while allowing him to have
close contact to his father in New Zealand.
128
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Grounds of Appeal
The High Court noted that it was not suggested that the Judge, in any explicit
way, misstated the principles which governed the appeal (para. 42). The
complains about the judgment were as follows (para. 43):
(1) The judge was wrong to take into account the events of 1998 (when the
mom abducted the children;
(2) There was an inadequate basis for the judge’s conclusions as to the
events of 1998;
(3) The judge’s exercise of discretion was otherwise inappropriate;
(4) The judge’s conclusion was inconsistent with the appropriate application
of the Hague Convention principles.
Judgment
The High Court stated that H had made out his section 13 defence and the
issue for the High Court was how the resulting discretion ought to be exercised
(para. 55).
Ground 1: Events of 1998
The High Court stated that in determining the weight of H’s objection, it was
necessary for the judge to look at the reasons that were underlying the child’s
objection. Based on the facts, the objection of H to a compulsory return to the
UK was associated with the events of 1998 and the consequences of those
events (para. 56). The relevance of the 1998 abduction was that: (1) it showed
the reasonableness of H’s objection and (2) how H would react if his objections
were overruled by the Family Court and he was required to return to the UK
(para. 57).
The 1998 abduction were relevant to H’s objections. They explained: why he did
not wish to be returned to the UK, why he chose an access visit to New Zealand
to announce his preference for living with his father and how he would react if it
was overruled. The High Court stated that “In my view, Hague Convention
129
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
principles permit such considerations to be examined in terms of evaluating H’s
objection and determining the weight attached to it” (para. 58). The judge did
not take into account the events of 1998 in any way which was adverse to the
mother (para. 59).
Ground 2: Inadequate Evidential Basis for Judge’s Conclusion on 1998 Events
The High Court stated that it was open to the mother to provide evidence as to
why she abducted the children in 1998 (para. 64). If the evidence was untrue, it
should have been challenged by the mother (para. 66).
Ground 3: Judge’s Exercise of Discretion was Inappropriate
The High Court stated that other than the judge’s sixth factor, it was satisfied
that the mother had not pointed to any tangible error on the part of the judge in
the way he approached his decision. The sixth factor was not significantly
influential in the judge’s ultimate decision (para. 78).
Ground 4: The Judge’s Decision was Inconsistent with the Principles of the
Convention
The Court stated the following about the Convention (para. 83):
- It is essential that the defences to the Hague Application not be
construed in a way to negate the overall thrust of the Hague Convention
which is that adducted children should be returned.
- Objections that are associated with pressure or influence emanating
from the abducting parent should not prevent a child from being
returned.
Objections based on misunderstandings on the part of a child should
also not prevent a return being ordered.
- Objections which are primarily associated with a preference for living
with one parent over the other are sometimes seen as being of limited
weight because they relate to an issue which is usually best determined
by courts in the country of the child’s habitual residence.
130
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
-
-
-
It is right to recognize that the provision of a defence based on the
objection of the child is at least, in part, intended to reflect
considerations associated with the personal autonomy of the child. The
older and mature the child, the greater level of autonomy should be
recognized.
Cases where a mature child has a rational and uncontaminated
objection to return probably can be regarded as exceptional when
viewed against the general run of Convention cases (para. 89).
The Court looked at English cases and concluded that the cases
support the view that when a Hague Convention application concerns a
teenager, the Courts are required to pay close attention to a strong and
reasonable objection to return which that teenager articulates (para. 92).
The High Court noted the following critical factors in the case (para. 94):
(1) There is a strong objection on the part of H which involves his
preferences as to where welfare litigation between his parents should
be conducted and where he wants to live but primarily relates to his
strong desire to live with his father. This is not the result of inappropriate
persuasion. Given H’s age and maturity and uncontaminated views, his
objections are an extremely significant factor in mitigation against
return.
(2) Welfare issues associated with H have been the subject of litigation in
England. The clear expectation of the English courts was that the
Hague Convention would ensure that H would be returned to New
Zealand. It is critical that courts of the various countries which are
parties to the Convention do not act in a way that undermines
confidence in the Convention.
(3) H’s objection to a return to the UK is at least to some extent associate
with his perception that he was inappropriately abducted there from
New Zealand in 1998 and the consequence of that abduction. Given
that abduction, the reluctance to return to the UK would appear to be
reasonable and understandable and a compulsory return could be
perceived by him as being a second abduction.
131
PERU
Case
Facts
Held
File Nº20040276-0-2702JM-FA-01
The application related to a boy
born in February 1997 to an
Argentine father and a Peruvian
mother. The boy lived in
Argentina with his parents until
June 2003. The couple then
separated and the mother went to
Peru in the same month to visit
her family. The mother had
ongoing permission form the
father to travel with the child, until
the child reached adulthood.
The removal was
wrongful and a
return was
ordered. The child
was a habitual
resident in
Argentina on the
relevant date and
none of the
exceptions had
been established
to the standard
required under
Article 13.
(Juzgado
Mixto de
Carabayllo,
First Instance
Mixed Court
of Carabayllo)
Note: This is a
decision by a
court of first
instance. I
wanted to use
it to include
more cases
from South
America.
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used]
After five months in Peru the
mother expressed her wish to
remain there with her son. On
April 27, 2004, the father revoked
the open-ended travel permission
and filled a return application.
On December 2, 2004, the trial
judge invited the parents to reach
an amicable settlement. The
father refused.
Weight
Given to
Child’s
Objection
No weight
Important Statements & Reasoning
Habitual Residence
The Court held that the concept of habitual residence must be understood as the place
where a child had or has his centre of gravity, i.e. the physical space in which he
develops his daily activities and where his interests are found. Habitual residence is not
related to the nationality of the child.
Although the mother had taken care of the child’s needs without receiving any help from
the father, and despite the fact that the child had expressed the view that he had friends
and was happy in Peru, the Court found that the child’s habitual residence was in
Argentina at the date of the retention.
Grave Risk
The Court held that grave risk of harm was an exception to be construed and applied
restrictively. The mother had failed to present the requisite evidence to sustain the
existence of factors threatening the physical or psychological integrity of the child were
he to be returned to Argentina or to prove that such an event would place him in an
intolerable situation.
Objections to the Child’s Return
The Court held that the child’s objection to return to Argentina was based on Peru being
more fun and because he had friends there. While these thoughts were natural for his
age, they did not show a level of maturity sufficient for the purposes of Article 13(2).
Furthermore the child had expressed strongly his desire to stay with his mother
regardless of the place of residence.
132
SCOTLAND
Case
N.J.C. v.
N.P.C., 2008
S.C. 571
(Extra
Division, Inner
House, Court
of Session)
Facts
Held
The parties had married in the UK in 1989.
They remained there until 1994, when they
spent two years in Mexico and then two years
travelling the U.S. In 1998 they returned to the
UK for several months before moving to Spain,
where they stayed until 2011. The stay in Spain
ended when the parents separated, with the
mother moving to France. The father followed
the mother to France and the parties engaged
in protracted litigation over their four children. At
trial and on appeal, the mother was designated
as the primary parent, with the father having
contact.
Appeal
dismissed
and return
ordered.
The
removal
had been
wrongful
and none
of the
exceptions
applied.
Weight
Given to
Child’s
Objection
Little weightmanipulation
by father
Important Statements & Reasoning
The Court of Appeal noted that before Lord Ordinary, both senior counsel had
concede that the children C and S had stated objections to being returned and that
both had reached an age and level of maturity at which it would be appropriate to
take account of the views expressed by each. The Court of Appeal noted that this
meant that the Court has discretion in relation to their return (para. 30).
Lord Ordinary exercised his discretion in favour of return despite the objections of
the children. The Court of Appeal noted that “The authenticity of the views
expressed by the two children C and S was a primary issue”. The lower court had
found that there had been attempts at manipulation by the father. The Court of
Appeal found that there had been no error in law and Lord Ordinary did not
exercise “his discretion in a manner that was open to criticism” (para. 35). The
Court had properly applied the Convention; did not indulge in identifying what
might be in the children’s best interest as this was a matter for the home court; and
did not want to engage in a comparison of the courts and France versus the courts
in Scotland with regard to how they handled their cases involving children (para.
35).
During access in July 2005, the father removed
the children to south East Asia. After six months
of travelling, they settled in the Philippines
where they remained until December 2006. In
November 2006, they moved to Dundee,
Scotland, a city which they had no prior
connection to. At the date of removal, the
children were aged 15, 12, 8 and 6.
In fall 2007, the mother learned of the children’s
location and initiated return proceedings.
In March 2008, the Outer House of the Court of
Session ordered the return of the children. The
trial judge found the removal to have been
wrongful and that the children had not settled
into their new environment. He found that the
133
Case
Facts
Held
Weight
Given to
Child’s
Objection
Appeal
allowed
and return
ordered.
The trial
judge
erred in his
interpretati
on of
13(2). The
Court
concluded
that the
eldest
child’s
objections
were not of
sufficient
weight to
activate
the
exception.
Little weight
Important Statements & Reasoning
older children’s objections were not of the
standard to justify a non-return order being
made.
The father appealed. A curator ad litem was
appointed to represent the interests of the 3
children.
P.B.W. v. W.
and H.W.,
2004 S.C. 631
(First
Division, Inner
House Court
of Session)
The application related to four children aged
between 3 ½ and 9 at the date of the hearing.
The eldest child was a child of the mother by a
previous relationship.
The family emigrated from Scotland to Australia
in 1998. The youngest child was born in
Australia in 1999. The parents separated in
2011. A court order was made in Australia in
January 2002 and it awarded the father access
rights to the children. Several days later the
mother unilaterally removed the children to
Scotland. The father petition for the return of
the children.
In March 2003, at trial, the mother conceded
that the removal had been wrongful. The Outer
House of the Court of Session refused to make
the return order. The Court found that the eldest
child objected to being returned and it exercised
discretion not to return her. The other children
were not returned as to separate them from
their sister would place them in an intolerable
situation. The father appealed.
Undisputed Matters
The mother did not dispute that on the children’s date of departure from Australia,
H, A, D, and F were habitually resident there and that issues related to their
custody were within the jurisdiction of Australia. The mother accepted that the
children’s removal from Australia was wrongful in terms of Article 12 (para. 7).
Mother’s position
The mother claimed that if the children were ordered to be returned to Australia,
there would be a grave risk that the children would be placed in an intolerable
situation for three reasons: (a) the children would not have access to a continuing
proper education in a school of reasonable standard; (b) there is an absence of
reasonable necessary medical care and assistance and (c) the father was unable
to provide proper maintenance for the children.
The mother also relied on the objection of H being returned to being returned to
Australia (para. 8)
H’s position(who was a respondent in the proceedings):
H’s position was there is a grave risk that her return would place her in an
intolerable position for the same reasons expressed by the mother. Further, she
objected to the return and claimed that she was of a sufficient age and degree of
maturity at which it was appropriate to take into account her views.
134
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
H’s Objections
The court laid out the issues that needed to be determined:
(a) Whether H objects to being returned to Australia and if so why.
(b) Age and Maturity of H
(c) Assess the strength and validity of H’s views
(A) H’s Objection
- The Court found that H did object to being returned to Australia for two
reasons: (1) she fears that the father would capture the children and steal
them away and (2) that she wants to stay in Scotland with her mother
because it is “better to stay here and I’ve got my family and friends here”
(para. 33)
(B) Age and Maturity of H (para. 33)
- The Court accepted the evidence of the child psychologist that H’s
language and reasoning showed a level of maturity above average for her
age but her social development was less advanced. The Court also
accepted the child psychologist’s opinion that H’s lack of maturity in social
and emotional functioning did not preclude H from having attained the
degree of maturity necessary to understand the family situation and to
express a decision that was independent from the influence of others
- The Inner House expressed reservations about H’s level of understanding
the range of choice available, upon which she should base her decision
whether or not to return to Australia. There was confusion in H’s mind
concerning the purpose of her return to Australia. H feared that the
decision to return to Australia would be “forever” (even though she was told
it will be for such a time as the courts in Australia decide what is to
happen). The child psychologist stated that H understood that there were
options, but she didn’t feel that these options were choices for her.
- H’s decision were influenced by an irrational fear that her father would steal
her and the other children.
- H lacks proper understanding of the purpose of her return to Australia. Her
fear of being snatched away by the father made her react irrationally and in
135
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
-
a less mature way than expected of her.
The Inner House concluded that they were not satisfied that H had attained
an age and degree of maturity at which it was appropriate to take into
account her views.
(C) The strength and validity of H’s views
- The Inner House stated that they had no doubt that H’s views were
strongly held. However, they doubted the validity of such views.
- H did not wish to return to Australia partly because she equates it with
living with the father on a permanent basis.
- The fact that she settled in Scotland and enjoys her present environment
was not a valid reason for refusing a return to Australia so that the court
there could determine the issues.
- The Court concluded that “…even if I had reached the conclusion that H
was of sufficient age and maturity I would not have taken account of her
views because I do not consider her objection to be valid” (para. 35)
Discretion
The Inner House went on to say that, in the event that they had reached a different
conclusion, they would not have exercised their discretion in H’s favour. H’s
reasons did not provide sufficient cause to refuse to give effect to the spirit and
purpose of the Convention. It was also desirable for all 4 children to remain
together and that if the three youngest children are returning to Australia, it is
desirable that H join them.
SOUTH AFRICA
Case
Central
Facts
The father and his South African girlfriend
Held
The court
Weight
Given to
Child’s
Objection
Significant
136
Important Statements & Reasoning
Child’s Objections
Case
Facts
Held
Authority v.
Reynders and
Another
(12856/2010),
[2010]
ZAGPPHC 193
(deceased) had a daughter L who was born in
Cape Town in 2002. The father was not married
to the mother. He took responsibility for L’s care
and took her to Belgium in December 2007.
The father was officially recognized as the
father of the child in Belgium. As a parent, the
father had the parental authority and rights of
custody due to this formal recognition.
refused to
return the
child to the
U.S.
(North
Gauteng High
Court)
Weight
Given to
Child’s
Objection
weight
Important Statements & Reasoning
The Court stated that Article 13 of the Convention and section 278 of the
Children’s Act, the court had to consider the child’s objections to the return and
give weight to that objection, taking into account the age and maturity of the child.
Furthermore section 279 also required that the child have legal representation
under such circumstances (para. 26).
The judge also noted that he was required to abide by section 28 of the South
African Constitution whereby a child’s best interests were of paramount importance
in every matter concerning the child, although the judge was not sitting as a judge
in custody proceedings (para. 28).
The child lived in Belgium until June 2008,
when she relocated with her father and his new
wife to Los Angeles. In the summer of 2009 she
went to visit her maternal grandmother in South
Africa. She was supposed to return in August
2009 but was never returned. The grandmother
launched legal proceedings ex parte in South
African, which resulted in an order. The Court
stayed the application of the grandmother,
pending an outcome of the Hague Convention
application. The Court also ordered that
pending the decision, the primary care and
residency of L would remain with the
grandmother.
The court considered that (para. 28) :
- The child had very little contact with the life in Belgium
- She had more experience of life in the U.S. but substantially more to
extended family and the environment in South Africa
- She had settled into South Africa and was well adjusted
- She had an ambivalent attitude towards her father and his way of life
- She had less contact with her father than is generally desirable
- There is consensus among her school teacher, social worked and
psychologists that she was well adjusted
The court concluded that “A consideration of all of the relevant affidavits of the
teachers and counsellor have persuaded me that the child’s own view, although
they largely refer to short-term views and interests, are worth taking into account. It
is clear to me that she is intelligent, well-motivated and has a strong personality.
Like all other children, she deserves respect and she has mine. She does
however, need and deserve a close relationship with her father as well” (para. 29).
The father sought an order that LS be returned
to Los Angeles, U.S. and into his care.
SPAIN
Case
Facts
Held
Weight
Given to
137
Important Statements & Reasoning
Auto
Audiencia
Provincial Nº
133/2006
Pontevedra
(Sección 1ª),
Recurso de
apelación
(Appellate
Court)
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used]
The boy, a French national, was born in 1992.
The parents divorced in 1998 and because of
the harm that the boy had suffered during the
marriage, he was placed in the care of a public
institution in Paris. The decision to keep the
child in care was continued for a year on March
14, 2002 by a court of first instance in France.
This decision was upheld by the Paris Court of
Appeal in September 2002.
The parents were each granted a right of
access to the child. In the summer of 2002 the
parents were to share access, the mother
having access for the first half of the vacation,
the father for the second half. On August 6,
2002, the mother failed to give the child to the
father and on September 3, 2002, she failed to
return the child to the institution for the start of
the school year. At some date during the
summer vacation the mother took the child to
Spain. On January 14, 2003, proceedings were
started in Spain for the return of the child at the
request of the father and the French public
institution.
Appeal
dismissed
and return
ordered.
The
removal
was
wrongful
and none
of the
exceptions
had been
proved to
the
standard
required by
the
Conventio
n.
Child’s
Objection
No weight
Removal and Retention
The court noted that a year had not elapsed between the date of wrongful removal
in August 2002 and the commencement of return proceedings in January 2003.
Consequently a prompt return was still to be made. The Court further rejected
arguments that the child had become settled in his new environment during the
four years he had spent in the country, noting that he had been under the care of
Spanish social services for part of the time.
Rights of Custody
The Court found that the removal of the child in August 2002 was wrongful. It was
irrelevant that the French public institution which had custody of the child did not
have physical care at the moment of removal. It was still effectively exercising
custody on that date.
Grave Risk
The Court noted that there was no proof to substantiate the allegations that a
return would expose the child to a grave risk of psychological or physical harm.
The Court further noted that pursuant to Article 11(4) of Council Regulation
2201/2003 the grave risk of harm exception could not be upheld if it was proved
that adequate measures had been taken to guarantee the protections of the child
after his return. In this the fact that the French authorities had previously taken the
boy into care was a sufficient guarantee of his future protection.
A court in Barcelona temporarily set aside the
case on September 10, 2004 when the location
of the mother and child could not be
determined. The mother was arrested in Spain
on October 1, 2005 and the boy was taken into
care.
Objections of the Child to a Return
The boy, who was aged 14, stated that he did not wish to return to France or to
have a relationship with his father. While the Court acknowledged these objections
it also noted that the boy had been subjected to undue influence by his mother.
A court of first instance at Ponteverda ordered
the return of the child on May 10, 2006. The
mother appealed this order.
Settlement of the Child
The Court noted that a year had not elapsed between the date of the wrongful
removal in August 2002 and the commencement of return proceedings in January
138
2003. Consequently a prompt return was still to be made. The Court further
rejected arguments that the child had become settled in his new environment
during the four years he had spent in the country, noting that he had been under
the care of the Spanish social services for part of the time.
Auto Juzgado
de Familia Nº
6 de Zaragoza
(España),
Expediente Nº
1233/95-B
(Auto
Juzgado de
Familiar No 6
de Zaragoza,
Appellate
Court)
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used]
The child was an American national born in
California. His father was American and his
mother was Spanish.
The parents were separated. The mother
alleged that the father was violent and abusive.
In an interim hearing, the mother was awarded
exclusive custody of the child. In March 1995,
the mother was ordered to attend a subsequent
hearing and was prohibited from leaving the
country. Despite this order, the mother took the
boy to Spain. The California court proceeded to
grant both parties physical and legal custody of
the child. The father made an application under
the Convention.
In decision from February 1996 and May 1996,
the removal of the child to Spain was
considered wrongful and return orders were
made. The mother refused to comply with the
order. The mother went into hiding with the
child. On April 2004, the child was found and
enforcement was sought.
Removal
was
wrongful
and a
return was
ordered.
However,
the
concealme
nt of the
child for 8
years
made
enforceme
nt of the
original
order
impossible.
Some
weight
Held
Weight
Given to
Child’s
Objection
Child Objections
The Court listened to the child’s views. The child, who was now almost 11 years
old, had only became aware of his situation five years earlier when his mother told
him what happened. The child was willing to acknowledge his father, but only if this
did not cause a separation from the mother. He stated that he was not willing to go
to the United States, even on vacation, as this made him feel afraid.
The Court found the boy’s integration into Spain to be complete, he had no
memories of his father, retained no knowledge of English and had no strong
connections to the U.S. given his young age at the time of removal.
The Court ruled that enforcement of the original return order was now impossible,
but held that this should not prevent the child and father from trying to foster a
relationship.
SWEDEN
Case
Facts
139
Important Statements & Reasoning
Supreme
Administrative
Court
(Regeringsrätte
n), decision of
21 January
2002, Case
number 73732001
(Regeringsratte
n, Supreme
Administrative
Court)
The child, a boy, was 12 years of age at the
time of the alleged wrongful retention. He had
lived in England with his mother since the age
of three. The mother had rights of custody and
the father had access.
In October 2001, the mother and child went to
Sweden for a short visit to enable the mother
to visit her parents. During this time the
mother let the child stay with his father. On
October 25, 2011, the father informed the
mother that the boy wanted to remain with him
and that he would not return to England. The
mother then initiated return proceedings in the
County Court of Stockholm (Länsrätten i
Stockholms län).
On November 2, 2001, the Court refused to
order the return of the child on the basis of his
objections. The mother appealed to the
Administrative Court of Appeals in Stockholm.
On November 20, 2011, the Administrative
Court of Appeals ordered the child to return to
England. It ruled that the child’s objections
were not sufficiently well founded or
independent. The father appealed to the
Supreme Administrative Court of Sweden.
This Court ordered that pending the appeal,
the child would stay with his father.
Return
ordered.
The
retention
was
wrongful
and neither
13(2) nor
any other
exception
had been
proved to
the
standard
required
under the
convention
.
Little weight.
Objections of the Child
The Court received a report that noted the following about the child’s objections:
- The child wanted to stay in Sweden. He was born in Sweden and has
family in Sweden.
- He did not want to stay in England.
- He wanted to live with his father.
- The child was mature.
The Court notes that the Convention did not set a “benchmark” in terms of what
age a child should reach before their views are taken into account. The Court
therefore referred to Swedish national law (Chapter 21, section 5 of the Code on
Parents and Children) whereby the objection of a 12 year old is normally
considered. The child in the present case was found to have reached an adequate
level of maturity for his age.
The Court stated that in order to collect the child’s opinion, the child should be
given an opportunity to talk with an authorized court person. The information can
also be submitted by the parties.
The Court stated that the starting point for the assessment should naturally be that
the child’s expressed wishes should be respected. However, the child’s objection
should not be considered determinative of any case. Simply because a child is the
appropriate age and states that they prefer to live in a specific country does not
mean that their view will be determinative of the case. However, a child’s wish will
be of “paramount importance” if it is independent an, in relation to the child’s age,
appears to be mature and well-founded.
The court noted that this could be the case if the child referred to difficulties in
adjusting to circumstances in the state of habitual residence or showed that he
understood and had considered the consequences of permanently changing his
country of residence.
In this case, the Court stated that the child had lived with his mother in England
since the age of 3 and nothing indicated that this environment had been anything
but harmonious and healthy. The Court did not doubt that the child’s wish to stay
with his father reflected his independent wishes at that particular time. He
described England positively, including his schooling friends and recreational
140
activities. However, he did not seem to have considered all the difficulties
connected with leaving his habitual residence in England and adjusting to a new
life in Sweden.
The Supreme Administrative Court concluded that the child’s objection was not
sufficiently well founded for Article 13 to be applicable. The Court ordered to return
the 12 year old despite his express wishes.
SWITZERLAND
Case
Facts
Held
5A_764/2009
&
5A_778/2009,
II.
zivilrechtliche
Abteilung,
arrêt du TF du
11 janvier
2010
The parties were not married but lived together.
They had lived together in various locations
such as Zurich, Paris, New York and Santa
Monica. The parties had a daughter, Y., born in
2000.
Appeal
dismissed;
return
ordered
(Federal
Court)
Weight
Given to
Child’s
Objection
None
Important Statements & Reasoning
Habitual Residence
The habitual residence of Y was disputed between the parties. The Supreme Court
had assumed that the child was habitually resident in New York before she was
taken to Switzerland. She had been there from the fall 2005 to the summer of2008
and had gone to kindergarten and then to school.
The parties separated in the spring of 2004.
From February 2005, the child remained with
the father in New York where she attended
nursery and then went to school.
The Court agreed with the Supreme Court on this issue. The mother consented to
Y. staying in New York over several years, certainly by implicit conduct (the child
would visit the mother in the summer holidays in Switzerland). The child had been
enrolled in kindergarten in New York and regularly went to school. She had settled
in New York.
In June 2008, the child flew with her maternal
grandmother to Switzerland to spend the
summer holidays with her mother. The parents
agreed that the child would return to New York
in September 2008; however, the mother did
not return to child. The father requested the
return of the child to New York.
Custody
The parties disputed whether the father had custody of the child.
There was no formal order or agreement with regard to custody. However, the
father had exercised his custody rights in New York and it was wrongful for the
mother to have removed the child.
A hearing was conducted on April 2, 2009 and
Y. was heard on April 7, 2009. On November 3,
2009, the Supreme Court ordered the return of
Y, with the condition that the mother received a
Serious Risk of Physical or Psychological Harm
141
Case
Facts
Held
Weight
Given to
Child’s
Objection
permit from the U.S. which allowed her to stay
in the U.S. for at least a period of 3 months.
Important Statements & Reasoning
The mother claimed that the father had sexually abused the child. The Federal
Court noted that the Supreme Court had done a thorough assessment of the
investigation initiated by the mother. The Supreme Court had looked at various
psychological reports and correspondence between the father and Y. and had
determined that the mother’s allegations could not be substantiated and were not
credible. The Federal Court noted that the mother had left the child in New York
with the father despite her allegations and that the grandmother only reported her
observations with regard to the sexual abuse after the child had been removed to
Switzerland.
The mother also claimed that the child would experience neglect if she returned.
The father’s place was dirty and the child was unable to sleep in the apartment.
The Federal Court stated that these issues should not be dealt with under the
Convention, but should be dealt with in custody proceedings.
The Federal Court started that Article 13(1)(b) only dealt with serious risk of
physical and psychological damage. The Court noted that the child was doing well
in school and was loved and cared for by her father who was active in her life. A
return would not pose a risk to her physical or psychological harm.
Child Objections
The Federal Court summarized the law on children’s objections (in paragraph 5.1) :
Under Article 13(2) a Court may refuse a return of the child if it is established that
the child is opposed to the return and has reached an age and maturity that allows
the child’s opinion to be taken into account. The Convention has no specific age
limit for when a child’s views can be taken into account. After the court is assured
that the child has reached the required maturity, the court should inquire as to
whether the child is able to make autonomous decisions and able to form an
opinion independent of external influences. The child must also understand the
meaning and the problem of returning. The child must be able to identify, in
particular, that they are not deciding the custody arrangements, but merely which
country they are going to live.
The Federal Court went on to say that when considering the relevant child
142
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
psychology, the Federal Court assumes that children generally have these abilities
from about age eleven to twelve years (in accordance with Swiss legislation).
The Federal Court said that at present, Y. had not reached the age limit. This
meant that she had no general right to a hearing. Article 12 did not guarantee a
personal interview of the child, but considers it sufficient if the child’s position has
found its way into the proceedings in some other way (paragraph 5.2)
The Court went on to say that the age threshold is a directive and that Y. was
described by all involved authorities as very intelligent (paragraph 5.2)
The Federal Court reviewed the facts of the case. The child had repeatedly and
consistently expressed a desire to stay in Switzerland. The Supreme Court had
observed that the child did not have any real reservations about staying with the
father. She said that should she be required to stay in New York, she would be
very sad, would cry and would call her mother every day to speak with her
(paragraph 5.3)
The Supreme Court considered that Y. was in a conflict of loyalty and felt that she
had responsibility for the outcome of the proceedings. The Federal Court felt that it
could not be ruled out, that Y was adopting statements of her current caregiver and
making them her own (paragraph 5.3)
The Federal Court stated that when a child is not even ten years of age, it is hardly
conceivable that the child would express something other than wanting to be at
their current location and with the person currently taking care of them. The child
said the following:
- She was happy with her current situation and is concerned about returning
to New York
- She said that her mother was playful and not very strict
- She liked swimming in the lake or the pools
- The mother’s partner was nice, not too strict, and she had gotten used to
him
- At school, the child had many friends and felt comfortable at school and in
143
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
-
-
the classroom
She had pets, there were English children in the neighbourhood, she would
go on play dates
She did not want to go back to New York: her friends were mean, she was
less well-liked, the water in New York was dirty and you could not swim
She said that there were also positive aspects of New York: there was
much to do in New York, she sometimes missed her father and paternal
grandmother
She would prefer to live with her mother in Zurich and her father during the
holidays but visit other places during the holidays because she would
rather go somewhere other than New York (paragraph 5.4)
The Federal Court assessed the child’s statements. The child’s statements showed
that she could adapt to New York and that she did not properly oppose her return
(paragraph 5.5). The Court noted that the child’s choice was primarily based on
leisure and recreational activities and that her mother’s preferences also informed
her views, which was typical of younger children. The Court felt that there were no
considerations that would be expected of a mature child (thoughts about the
specific situation of her care, the language conditions at the schools, her job
prospects etc). The evidence showed that the child did not understand the
difference between a permanent return to New York and temporary return to New
York while the parties engaged in custody proceedings (paragraph 5.5).
In accordance with the decision of the Supreme Court, the Federal Court felt that
the child was not of an age and maturity where she could be considered an
autonomous decision-maker (paragraph 5.5.).
5A.582/2007
Bundesgerich
t, II.
Zivilabteilung,
04 décembre
2007
The parties were married in France and were
divorced. Following separation, the parties were
awarded joint custody of their children, A, born
in 1993 and B, born in 1999.
Appeal
dismissed
and return
ordered.
None
The Convention
The Court stated that the Preamble of the Convention mentions the primary of the
child’s best interests, but to the extent that a wrongful removal affects the child, the
Convention requires the child to be immediately returned to his/ her country. This
guiding principle is found within the Articles of the Convention and the rules and
exceptions are provided for in detail.
On May 19, 2006, the mother left with the
children and moved to Switzerland despite
144
Case
Facts
(Superior
Appellate
Court)
opposition from the father. The father petitioned
for the immediate return of the children.
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Article 16 of the Convention prohibits the repatriation judge to make a substantive
decision on custody- i.e. in which country and with which parent the child would be
better and have more opportunities.
The mother appealed the decision of the
Cantonal Court of Basel-Land, dated
September 4, 2007, which ordered the children
to return to France.
Settled into New Environment
Article 12 explicitly states that the child may possibly be considered settled in the
new place. This should only be considered if the return request has not been made
within one year of the removal. In the present case, the request had been made
within one year and the child had not settled.
Child’s Objections
The Court stated that the District Court had considered that B was only eight year
old and had indicated that he did not care whether he lived in Switzerland or in
France as long as he could be with his mother and sister. A was already 14 years
old and had the necessary maturity for her opinion to be taken into account.
According to the oral hearing, she felt the new location would be nice and that she
would prefer to live with her mother. However, the Court noted that A did not offer
any serious reasons for not wishing to return to France.
The Court reviewed A’s statements:
- She quickly found friends in Switzerland
- She likes German history and is doing well in school
- She did not want to live with her father and does not like his new wife
The Court stated that A’s statement that she had found many new friends was
normal and that this did not constitute an objection under Article 13(2). The Court
stated that an objections must be qualified, i.e. backed by special reasons.
The Court went on to say that B was not relevant to the issue as it was obvious
from the outset that he did not have autonomous decision-making capabilities. The
child made it clear that he wished to be with his mother or sister and it did not
145
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
matter to him whether he was in France or Switzerland.
The Court concluded that the appeal must be dismissed and that the children
should be ordered back to France.
5P.3/2007
/bnm;
Bundesgerich
t, II.
Zivilabteilung
(Superior
Appellate
Court)
The application related to two children, V born
in Brazil in 1997 and W, born in Brazil in 1999.
The parties were married in 1996. The parties
lived in Brazil since January 1997.The parents
separated in 2004, but continued to live in
Brazil. In May 2006, the father took the children
to Switzerland after the mother had agreed that
they could go between May 3rd and June 3rd.
The father did not return.
On October 10, 2006, the local court in
Bremgarten ordered the return of the children.
Appeal
dismissed
and return
order
confirmed.
The Court
of Appeal
had not
breached
Article
13(2) by
refusing to
hear the
children.
None
The Father’s Grounds of Appeal
1. The cantonal authorities should have listened to the children and directly
violated Article 13(2) of the Hague Convention.
The Children’s Objections
The Court stated that the Supreme Court had considered this issue, according to
the testimony of the parents. The evidence was as follows:
- The mother stated that the children were homesick for Brazil
- The father testified that W. would not return to Brazil (but did not give any
specific reasons for this). V’s views were inconsistent and it was noted by
the Court that he had no reservations against Brazil but wanted to remain
in the care of his father.
On December 18, 2006, the Court of Appeal for
Aargau upheld this order. The father then
issued a legal challenge both to the Federal
Tribunal and the Swiss Supreme Court.
Child Objections Under the Convention: The Law
The Court stated that the children, 9 and 7 years old, were below the age of what
psychologists had typically accepted as the appropriate age to take into account
children’s views. The Court also noted that there were no concrete reasons why
the children resisted a return to Brazil. V’s views were ambivalent, and did not
address the circumstances of Brazil but his personal relationship with his parents.
The Bundesgericht referred to its decision of June 1, 2005 BGE 131 III 533 in
which it had ruled that it was possible to hear a child once he had passed his
seventh birthday (within the context of Article 144 of the Swiss Civil Code).
Reference was also made to the decision of March 22, 2005 in which the Court
ruled that it was impossible to state in general terms, the age from which a child
would have sufficient maturity for the purposes of Article 13(2). In the latter
146
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
decision, the Federal Tribunal had analyzed academic commentaries and had
concluded that there was an absence of consensus as to the age required for the
operation of Article 13(2), although it was clear that the closer a child got to 16, the
more of a chance there was that he would be sufficiently mature for his views to be
considered.
The Court noted that the question for consideration in the present case was
whether the Hague Convention required the Court of Appeal to have heard the
children, who at the time of the hearing were age 9 ½ and 10 ½. The Court
explained that the relevant issue at the time was not what the child’s views were
with regard to custody or residence, which was a matter for the Court in the State
of habitual residence. A child would have to have the requisite maturity if he was
able to understand the nature of return proceedings. The child would need to
understand, in a very abstract way, that the question does not involve which parent
they would prefer to live with (as this would be decided in his state of origin by the
local courts). The Court affirmed that it was not able to give general guidance as to
the minimum age from which a child would be able to deal with such an abstract
issue. It noted that research from the field of psychology suggested that a child
would only be capable of such reasoning from the age of 11 or 12.
The Bundesgericht accepted that a court dealing with a return application may
apply different standards than a court dealing with the issue of custody. In the
custody context, a court had to make a decision in light of the personal information
created through the statements of the child. However, in a return application, the
child could not be questioned about particular issues which he may have a view on
(such as his relationship with his parents). This is because such issues are not
relevant to the Convention. Therefore, there would be no point in questioning a
young child on such matters because they were not issues that a judge could
consider under a Convention application.
The Court held that an abducted child would often find himself in a very different
situation to that of a child in a custody case. The abducted child would not be in his
home environment, may not speak the local language and would be separated
from close family members. In comparison to a child in a domestic custody case,
147
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
an abducted child would be less likely to feel conflicted loyalties, due to his
separation from the left behind parent and being under the influence of the
abducting parent. In the context of Article 13(2) it was clearly necessary to check
that the child had come to his views independently and free from parental
influence.
The Court concluded that there was no requirement that abducted children be
systematically interviewed. Abducted children had to be capable of understanding
that the issue of return was separate from custody. In light of child psychology and
studies, the court concluded that such reasoning could not be found in children
younger than 11 or 12 (i.e. they could not distinguish between the abduction and
where they would leally reside versus which parent would have care of them).
The Court of Appeal had been entitled to refuse to hear the children who were
significantly younger than the minimum age and there was no violation of the
Convention.
5P.1/2005
/bnm,
Bundesgerich
t, II.
Zivilabteilung
(Tribunal
Fédéral, 2ème
Chambre
Civile)
(Federal
Supreme
Court, Second
Civil
Chamber)
The parties were married in 989 and lived in
Spain. The children had two boys, who were 8
and 9 years old at the date of alleged wrongful
removal. They had lived their entire lives in
Spain.
On June 21, 2003, the mother unilaterally took
the children to Switzerland, where she
immediately filed for divorce. On January 19,
2004, the father petitioned to the Spanish
Central Authority for the return of the children.
The application was transmitted to a Swiss
district court on April 23, 2004.
The appeal
was
upheld- the
children
were to be
returned.
13(2)
exception
was not
made out.
None
The Children’s Objections
The Federal Supreme Court found that the issue of the children’s objection to a
return should be re-examined. The children had been interviewed, individually to
begin with in September 2004 by the President of the District Court in the presence
of a child psychologist. Both children, X and Y, had expressed the wish not to
return to Spain.
The Court added that it was necessary to examine whether the wish expressed by
the children had been influenced by the abductor. The Court held the view that a
child with sufficient maturity if he or she understands the principal elements of the
situation and the interests of the parents and is able to appreciate them and on that
basis, form his or her own opinion. The court must also be convinced that a child
who expresses his or her objection to return is able to overcome his/her conflict of
loyalty and to form an opinion despite all of the external influences. The Court
concluded that there will ever hardly be an entirely unbiased decision. Recognizing
that there is no real fully independent wish, the Court found that distinction should
On June 21, 2004, the district court ordered he
return of the children. On August 11, 2004, the
Lucerne Court of Appeal vacated the decision
148
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
and referred the parties back to the district
court.
be made between manipulated wishes and the real wish of a child, which, although
not completely independent, must be considered (para. 5.1).
On September 22, 2004, the district court
dismissed the father’s application for return. On
November 11, 2004 the Court of Appeal upheld
the decision. The father then brought a further
appeal with the Federal Supreme Court.
The Court stated that there was no minimum age limit for when a child’s views
should be taken into account. Initially, Swiss law had indicated that a 14 year old
child was of sufficient maturity for his objection to be considered, but this age limit
had been contested and over the last few years the case law had shown that 10
year old children had also been found to have sufficient maturity in accordance
with article 13(2). The Court noted however, that clearly the more a child
approached 16 years of age, the more there was a chance that they would not be
influenced by a parent. The Court noted that when they were heard by the
President of the District Court, the children were aged 9 ½ and 10 ½. They young
age did imply a high risk of influence and the court felt that they should exercise
restraint (para. 5.2).
The Court indicated that for a return proceeding, a custody decision should not be
made. This decision was only for the family court in the country of habitual
residence (para. 5.3).
The Supreme Court (lower decision) had that V and W seriously expressed that
they did not wish to return to Spain. The Federal Supreme Court indicated that
there was no reason to question that the children expressed objections. Their
hearing had taken place in the presence of a specialist and had been completed
thoroughly. The statements of the children had been based on real experience and
their negative attitude needed to be interpreted (para. 5.4).
V expressed that he would probably be on his own again or with the neighbours if
he moved back to Spain because his father returned home from work late. W
indicated that he feared finding himself on the streets in view of the difficult
financial conditions in Spain and added that his mother had told him she would be
in a difficult situation if she returned to Spain (para. 5.5).
The Court pointed out that it was interesting that both children commented on
whether they would rather stay with their mother in Switzerland or return to their
149
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
father in Spain. The question of return was not understood, the children were more
concerned with who they would prefer to live with. The children were not able to
distinguish between return and custody (para. 5.5).
The Court of Appeal had upheld the finding of the District Court that the children
had not been influenced by their mother. The Federal Court found that all
circumstances should be taken into account: the children had fled Spain with their
mother and had been received with open arms in their new environment in
Switzerland (where their grandparents resided). It was not possible that children at
this age, when put under such circumstances, would be able to say anything else
than that they preferred to remain with their mother in their new environment, and
even more so given that she had told them that it would be very difficult for her to
return to Spain and live there. In view of the mother’s negative statements, the
Federal Court stated that it was even possible that the children believed that a
return to Spain would mean separation from their mother who was their immediate
caregiver (para. 5.5).
Under these conditions, the Court found that it was not possible to speak of an
independent wish and concluded that the children did not have the maturity
required by Article 13(2) (para. 5.6).
5P.354/2004
/rov
(Federal
Supreme
Court, Second
Civil
Chamber)
The application related to a child born in 1999.
The parents were married and the family lived
in Italy. In June 2002 the mother took the child
to Switzerland and refused to return. The father
issued return proceedings and after a series of
judgments the mother finally returned to Italy
with the child.
In December 2003 the mother took the child to
Switzerland again. On July 12, 2004, the Court
of Appeal in Lucerne ordered the mother to
return with the child before July 31st. The
The legal
challenge
was
rejected.
The
removal
was
wrongful
and none
of the
exceptions
applied.
No weight
Grave Risk
The Court found that there was no grave risk to the children if they returned to
Italy.
The Court then questioned whether Article 13(1) b) was applicable as the mother
claimed. It noted that this provision required a strict interpretation and an abductor
was not to be allowed to take advantage of their wrongful actions. Furthermore the
aim of the proceedings was not to determine with which parent the child would be
better off - this was an issue for the courts in the State of the child's habitual
residence (para. 3).
150
Case
Facts
Held
Weight
Given to
Child’s
Objection
mother than issued a legal challenge before the
Federal Tribunal.
Important Statements & Reasoning
Only serious risks were encompassed within the exception, such as the strong
possibility that the child would be harmed on his return by the applicant parent or a
third party and in circumstances where the local authorities would be unable to
protect the child fully (para. 3).
In this regard the mother claimed that the Court of Appeal had only considered the
father child relationship. The Court noted that the Court of Appeal had considered
the father-son relationship but explained first that this had been a response to the
judgment of the trial court which had refused to make a return order on the basis
that the mother child relationship was closer. In addition the Court of Appeal had
considered other issues (para. 3)
The mother further alleged that the Court of Appeal had acted arbitrarily in its
evaluation of certain facts. With regard to accommodation in Italy the Court held
that the poor state of the residence and its alleged location in a red light district
were irrelevant since the mother had found an alternative place to stay. There was
no evidence of an arbitrary decision having been reached on this basis (para. 3).
The mother also claimed that the father did not care for the child properly. She
sought to prove this on the basis of witness testimony and through a video. The
Court of Appeal had not accepted the testimony since it came from relatives who
had not personally witnessed the father son relationship (para. 3).
The nightmares suffered by the child and his strange behaviour in the father's
presence were not determinative either, it being commonly acknowledged that in
cases of parental conflict such psychosomatic reactions could be experienced by
children. The mother criticised this finding but adduced no evidence that the
reasoning of the court had been arbitrary (para. 3).
The mother also challenged the Court of Appeal’s evaluation of the video in which
the child stated that he did not wish to return to Italy. But again she did not show
how the lower court had acted arbitrarily. The court had found that the child did not
wish to move again, but he did not express a view on the allegedly unbearable
nature of life in Italy (para. 3).
151
Case
Facts
Held
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
Child’s Objections
The Court said with regard to the child’s objection, the child was only four years old
and did not have the requisite age of maturity to be able to imagine the
consequences of a return and life in his country of origin. The parties and the
mother in particular, were required to take the necessary steps to alleviate the
child’s fear before a return to Italy (para. 3.2.2).
Decision of
the Cour
d'appel du
canton de
Berne, S359/1/2001,
02/10/2001.
(Bern Court of
Appeal)
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used]
Kantonsgeric
ht von
The parties had three boys, aged 8 ½, 6 ½ and
3 ½. The parties lived in Spain at the time of
the alleged wrongful retention.
The parents were married and both enjoyed
custody rights with respect to the children. On
April 6, 2011, the mother took the boys to
Switzerland for a vacation. On April 16, 2011,
the mother informed the father that she would
not be returning with the children. The father
issued a return application on that same day.
On July 31, 2011, the views of the children
were sought by the trial court dealing with the
application. A return order was made. The
mother appealed.
Appeal
dismissed
and return
ordered.
Article
13(1)(b)
was not
proved to
the
standard
required
under the
Conventio
n.
Little Weight
Appeal
dismissed
Significant
weight
Grave Risk
The mother argued that she had come to Switzerland to escape from the violence
of the father and to protect the children. The court dismissed this ground finding
that the father had never been violent to the children and did not represent a
danger to them. It further noted that a return to Spain did not mean that the mother
and children had to return to the former family home.
Objections of the Children
The court ruled that given their young ages (the boys were 9, 7 and 4 ½ at the time
of the hearing), their views could not be determinative on the issue of the return.
On September 9, 2011, pending the appeal, the
father regained custody of the second child
who returned to the family home in Spain. The
basis of the appeal in respect to that child
therefore became groundless.
The child, a girl, was age 10 on the date of
wrongful removal. Until then she had been
152
Objections of the Child
Case
Facts
Held
Graubünden
(Court of
Appeal of the
Grisons
Canton),
decision of 6
March 2000,
PZ 00 9
living in Italy. The child’s mother was dead and
she was cared for by her maternal grandmother
at the request of the father who served as a
Swiss guard at the Vatican.
and return
refused.
The
retention
was
wrongful
but the
child
objected to
the return
and was of
an
appropriat
e age and
maturity to
have her
views
taken into
account.
[Full case not
available on
INCADAT or
online.
INCADAT
summary
used]
In 1999, the father retuned to Switzerland,
without his daughter, to remarry. The
grandmother then commenced custody
proceedings in the local Italian court. She was
accorded temporary custody and the father was
given access during the forthcoming summer
vacation.
During his period of access the father took the
child to Switzerland but he refused to return her
at the end. In September 1999, the
grandmother issued a return petition before a
Swiss court, the Bezirksgericht Plessur. In
November 1999, the president of the court
interviewed the child. On January 13, 2000, the
court declined to order the return of the child.
The grandmother appealed.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
The grandmother argued that the maturity of the child should be reassessed
because in her view the first expert was not impartial, knowing both the father and
the new wife. In addition, the first report, in her view, was incomplete.
The court rejected these arguments finding that a second report would not lead to
new conclusions. It further considered that the child, who was now aged 11, had
an exceptional level of maturity for her age and had formed her own views without
being influenced by her father.
UNITED STATES
Case
Facts
Held
Escobar v.
Flores, 183
Cal. App. 4th
737 (2010)
The parents resided in California and gave birth
to their son, Cesar. The parties were never
married.
Appeal
dismissed.
Weight
Given to
Child’s
Objection
Extremely
significant
Important Statements & Reasoning
Child Objections
The Court of Appeal stated that in applying the ‘age and maturity’ exception, a
court must not focus solely on the general goal of the Convention- to protect a child
153
Case
(Court of
Appeal of
California, 3rd
Appellate
District)
Facts
Held
Weight
Given to
Child’s
Objection
In 2004, the father agreed to permit the mother,
who was not a legal resident of the United
States, to take Cesar to Chile for seven months
to visit family. Cesar was to return to the U.S. at
the end of the visit with or without his mother.
Important Statements & Reasoning
from the harmful effects of wrongful removal- but must also carefully determine that
the child has obtained an age and degree of maturity at which it is appropriate to
take into account of its views.
The Appeal Court showed a great deal of deference to the trial court. It stated that
the determination of whether the child had attained an age and degree of maturity
in which it was appropriate to take into account its views was a factual issue for
which “deferential appellate review is appropriate”. While the Court of Appeal had
nothing but the “cold, unadorned words on the pages of the reporter’s transcript”,
the lower court had “the living, breathing child before it”. The court went on to state:
“Under these circumstances, it would be inappropriate for us to determine Cesar’s
maturity “de novo”, as mother would apparently have us do”. ‘
After about six months, the mother informed the
father that she would not be returning to the
United States. In 2005, the mother obtained a
custody order from a Chilean court. From 2004
to 2008, Cesar resided with his mother in Chile.
In 2008, the mother sent Cesar to visit his sister
in the U.S. The father learned of the visit,
travelled to Mammoth Lakes and arranged to
visit with the child. During the visit, the father
filed a petition to establish a parental
relationship with the child and obtained an order
granting him temporary custody of Cesar. Ten
days later the mother filed a petition under the
Hague Convention for the return of Cesar to
Chile.
The Court stated that they had no basis to overturn the trial court’s determination
of Cesar’s maturity and age. The mother cited case law which established that a
nine year old was not mature enough to have a legitimate objection. The Court of
Appeal rejected the argument that there could be a “bright-line rule” regarding the
age that a child should be considered mature as this “is contrary to the intent of the
drafters of the Convention”. An inquiry into a child’s maturity is fact-intensive and
not a strict hard line rule.
The mother claimed that Cesar’s desire to stay in the U.S. was not based on his
age and maturity, but rather, was the thoughts of a selfish 8 year old who had been
influenced and biased against going back to Chile. The Court of Appeal concluded
that the mother was asking the Court to draw different inferences from Cesar’s
statements than the trial court drew and the Court stated that “we cannot say that
the inferences the trial court drew were unreasonable and this precludes us from
overturning the court’s determination”. Under the substantial evidence standard of
review, where two or more inferences could be reasonably drawn from the
evidence, the court is without power to substitute its own inferences for those of a
trial court. Because the mother had not shown that her view of the evidence was
the only reasonable view, the Court of Appeal stated that they must defer to the
trial court’s findings that Cesar was of sufficient age and maturity for his views on
the return to Chile to be considered.
Re: Child’s Objections
The father asserted that the court should refuse
to order Cesar to return to Chile because of his
objections to being returned. Despite the
mother’s objection to the court interviewing the
child (because of the father’s alleged coaching
and influence), the court permitted the child to
be questioned.
The child told the judge:
154
Case
Facts
-
-
-
Held
Weight
Given to
Child’s
Objection
Appeal
dismissed
and return
ordered
Little weight
Important Statements & Reasoning
He found school boring in Chile.
That he wanted to stay in the U.S
because he likes his house, his school,
living with his sister and dad and his
friends.
He said that he didn’t have many
friends in Chile, he didn’t have his own
room/tv/bed, his mom would leave him
in the house when he worked and “I feel
good here, not in Chile”
He had many toys in the U.S. and he
had many places to play and visit
He wanted to stay in the U.S. to learn
English
He preferred the school bus in the U.S.
to the one in Chile
The lower court determined that Cesar
demonstrated a sufficient degree of maturity to
raise an objection for the court to take into
account his views and refused to order his
return to Chile. The mother appealed.
Kufner v.
Kufner, 519 F.
3d 33 (1st Cir.
2008)
(United States
Court of
Appeals for
the 1st Circuit)
The mother was a U.S. citizen and native of
Rhode Island. The father was a German citizen.
The parties married in Munich, Germany and
had two sons, J.K. and M.K. During their
separation period, they informally agreed to
share time with their sons.
Child’s Testimony
The Court of Appeal stated that no part of the Hague Convention requires a court
to allow the child to testify or to credit the child’s views, so the decision rests within
the sound discretion of the court. The Court stated that the district court did not
abuse its discretion by refusing to allow J.K. to testify.
Child’s Objections
The parties’ relationship deteriorated when the
mother found graphic photos taken by the
father of the two sons. The mother used them in
support of her Article 13(b) defence that her
The Court of Appeal stated that the “district court properly gave little weight to their
[the children’s] wishes because of their young ages, lack of maturity and
155
Case
Facts
Held
Weight
Given to
Child’s
Objection
sons would face a grave risk if they returned to
Germany. The pictures were of the children
playing naked in the father’s house. 4 other
photographs were more graphic.
Important Statements & Reasoning
susceptibility to parental influence. The district court did not abuse its discretion
when it concluded that it would be harmful and pointless to allow J.K. to testify”.
The Court of Appeal noted the reasons why the district court’s decision was
justified:
Dr. Weintrob’s, a child psychiatrist, provided evidence that further
questioning of the children would be harmful and make them anxious.
- The district court had simply assumed that the sons, if asked, would
express a desire to remain in the U.S. with their mother.
- The children had expressed a desire to remain in Germany when they
were questioned by the psychological wing of the German Department of
Youth and Families while in Germany and before they had been abducted
to the U.S.
In 2006, a German court issued a temporary
ruling on access and contact, which was to be
followed until the court determined the final
merits of the custody case. In this ruling, the
court ordered the father to be given rights of
access to his son. The court concluded that the
photos did not indicate that the father was a
pedophile or encouraged sexualized behaviours
of his sons.
In 2007, in direct violation of the German court
orders, the mother obtained the sons’ American
passports from the U.S. consulate and fled to
the United Stated without notifying the father.
The father petitioned to the U.S. district court
for the return of his sons to Germany. While the
American case was pending, the father
obtained a temporary order from a German
court awarding him full custody.
Re: Child’s Views
The American district court appointed a
guardian ad litem and attorney for the sons.
The lawyer reported that the sons were
attached to their mother and that hypothetically,
if asked, they would state that they wanted to
live with her in the U.S.
156
Case
Facts
Held
Weight
Given to
Child’s
Objection
Appeal
allowed.
The case
was
remitted to
trial court;
determinati
on to be
made as to
what
undertakin
gs, if any,
would be
sufficient
to ensure
the safety
of the
children
upon their
return to
Significant
weight to the
eldest two
children; no
weight for
the
youngest
two children
Important Statements & Reasoning
The district court did not accept the mother’s
argument that returning the sons to Germany
would create a grave risk of harm (under 13b)
given the father’s photographs. The court also
stated that they would give little weight to the
children’s preferences given their young ages
(8 and 7), lack of maturity and susceptibility to
parental influence. The court ordered the return
of the boys to Germany.
The mother appealed but did not challenge the
finding that she could not prove the 13(b)
defence.
Simcox v.
Simcox, 511
F.3d 594 (6th
Cir. 2007)
(United States
Court of
Appeals for
the 6th Circuit)
The parties were both American citizens. They
traveled extensively and moved frequently
during their marriage. The parties’ five children
were each born in a different country. The
parties resided in Mexico since the birth of their
youngest child in 2002.
The mother established that she and the
children had been physically and emotionally
abused by the father.
In 2006, the father had fallen asleep and the
mother instructed the four younger children to
pack their bags for Ohio. The oldest child was
living in France at the time. The father filed a
petition for the return of the children in 2007.
Preliminarily, the district court concluded that
the father had established that the children
were wrongfully removed from Mexico.
However, the court found that the two older
Grounds of Appeal;
The mother appealed on a number of grounds, including on the basis that the
district court erred in not concluding that the second youngest child, then 8, was
not of sufficient age and maturity to consider his objection to be returned to
Mexico. The Court of Appeal dismissed this argument.
Child’s Views
The Court of Appeal stated that the claimant has to establish on a preponderance
of the evidence 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.
Whether a child is mature enough to have its views considered is a factual finding,
and as such, the district court is entitled to deference.
The Court of Appeal noted that the district court had interviews D. Simcox in
camera and found him to be “preoccupied, disinterested and detached; in short, a
typical eight year old boy who strongly desired to be anywhere but in a Judge’s
chambers answering questions”. Although the district court noted the child’s
“avoidance in discussing the father” and stated that he “was visibly uncomfortable
157
Case
De Silva v.
Pitts, 481 F.3d
1279 (10th Cir.
2007)
(Court of
Appeals for
the Tenth
Circuit)
Facts
Held
children objected to the return and “possessed
the requisite level of age and maturity sufficient
for this court to consider their views” and thus
declined to order their return. The youngest
children, then 8 and 4, were not found to be of
sufficient age and maturity to have their views
taken into consideration. They were also not
found to be at a grave risk of harm because of
the father’s abuse. However, given the father’s
abuse, the district court conditioned the return
of the youngest two children on certain
undertakings designed to ameliorate the risk of
harm to them upon their return to Mexico.
The mother appealed.
Mexico
pending
outcome of
custody
proceeding
s.
The application was related to a boy born in the
U.S. in 1993 to a Sri Lankan mother and
American father. The parents were not married
and in February 1994, when the mother’s
American visa expired, she was ordered to
leave the country. She did not. In May 1994, the
father obtained an order from a local court in
Oklahoma to prevent either parent from
removing the child from the jurisdiction of the
court.
The appeal
was
dismissed
and the
non-order
was
confirmed.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
dealing with memories of Mexico”, the court concluded that he was “not of
sufficient age and maturity to permit this Court to appropriately consider his views”.
The mother also tried to argue that other courts have found children of a similar
age to be sufficiently mature. In response, the Court of Appeal stated that “Simply
because other eight-year-olds have been found to be sufficiently mature does not
meant that the district court erred in not finding the same with regard to D. Simcox.
The district court was obviously in a much better position to judge the child’s
maturity than are we. Because the court’s factual determination that D. Simcox
was not sufficiently mature to take his views into consideration was not clearly
erroneous, there is no ground for reversal”.
Significant
weight
Convention Defences
The Court of Appeal made the following statement about defences under the
Convention: “Courts in signatory nations take violations of the Convention very
seriously. In fact, even if a defence is established, a court still has the discretion to
order the return of the child if it would further the aim of the Convention which is to
provide for the return of a wrongfully removed child”.
Child Objections
The Court stated that although courts have construed the child’s objections
exception narrowly, quoting Blondin v. Dubois, 283 F. 3d 153, 166 (2nd Cir. 2001),
“a court may refuse repatriation solely on the basis of a considered objection to
returning by a sufficiently mature child”. Further, “a court must apply a stricter
standard in considering a child’s wishes when those wishes are the sole reason
underlying a repatriation decision and not part of some broader analysis”.
In 1994, the mother unilaterally moved the child
to Sri Lanka. A month later, an Oklahoma court
awarded the father full custody. The mother
subsequently brought custody proceedings in
Sri Lanka. In the absence of a remedy, Sri
Lanka not then being a party to the Hague
Convention, the father did not contest the
application and the mother was awarded
In applying the age and maturity exception, the Court of Appeal stated that the
court must not focus solely on the general goal of the Convention, which is to
158
Case
Facts
Held
Weight
Given to
Child’s
Objection
custody.
protect children from the harmful effects of wrongful removal, but must also
carefully determine that the particular child has obtained the age/degree of maturity
at which it is appropriate to take into account their views. “The Convention has no
age limit for applying the exception, and if a court determines that the youngster’s
opinion is the product of undue influence, the child’s wishes are not taken into
account”.
In January 2003, the mother moved to Canada
with the child, where she was accepted as a
refugee. In 2005, the boy travelled to Oklahoma
to stay with the father for part of the summer.
He did not return and expressed a desire to
remain with the father in the United States.
The Court of Appeal reviewed the lower court’s decision. The lower court had
observed that Jonathon was a “bright, expressive child with a well-developed
understanding of his situation and the position of his parents. He has attained the
age and degree of maturity to so consider his views”. The court noted that he was
well-settled in Oklahoma and expressed his desire to remain there “without
apparent adult indoctrination”. The lower court did not find that the child had been
swayed by the father’s lavish gifts or wealth.
Re: Child’s Objections
The district court magistrate judge interviewed
Jonathon in camera. The child was 13 at the
time of trial. He stated that he had discussed
relocating with the father during a prior visit to
Oklahoma but was then undecided about
remaining. He also told the judge that:
- He made friends in Oklahoma and was
on a football team and wrestling team
- His house was “really big” and “a great
place” where he had a computer and
everything he needed for school
- He felt more at home in Oklahoma and
wished to stay there
Silverman v.
Silverman,
338 F. 3d 886
The mother’s return application was dismissed
by the US District Court for the Eastern District
of Oklahoma. The Court found that the boy had
been wrongfully removed from Oklahoma and
that he now wished to remain with the father.
The mother appealed.
The parents married in the United States until
1999 when they moved to Israel. The family
stayed there for 10 months when the mother
Important Statements & Reasoning
The Court of Appeal concluded that:
(a) The father’s wealth and gifts had been taken into consideration by the
court;
(b) The fact that Jonathon and his father had discussed relocation over a
period of time, and that Jonathon had returned to Canada during the period
of ongoing discussions, were convincing that his was a decision on the
child’s parent and represented his honest wishes;
(c) They were mindful of the magistrate judge’s opportunity to observe
Jonathon in person, and they would accord great deference to the court’s
findings based on that experience; and
(d) The Court found no error in the district court’s ultimate conclusion that
Jonathon should remain in Oklahoma.
Appeal
allowed.
Return
Some
Child Objections
5 of the 12 judges argued that the case should be remitted to the District Court for
159
Case
Facts
Held
(8th Cir. 2003)
took the children back to the U.S. for a 2 month
vacation. However, in August 2000, the mother
informed the father that she would not be
returning and she commenced divorce and
custody proceedings in Minnesota. The father
filed an application for the return of the children.
At the time of removal, the children were 8 and
5.
was
ordered.
The court
held that
the
children
were
habitually
resident in
Israel at
the time of
the
retention.
(United States
Court of
Appeals for
the Eight
Circuit)
In October 2000, the state court granted the
mother temporary custody of the children and
found that the move to Israel had only been a
temporary one and that Minnesota was the
children’s home state. The mother then issued
an application in federal court to have the
father’s return petition dismissed.
Weight
Given to
Child’s
Objection
Important Statements & Reasoning
further proceedings to determine the views, if any, of the children, and for a further
determination as to whether either, now aged 11 ½ and 8 were of an age and
degree of maturity for which it would be appropriate to take into consideration their
views.
The dissent stated that District Court made a finding that the child was of sufficient
age and maturity to express his views and that he did not wish to return to Israel;
however, the majority of the Court of Appeal did not address this finding.
In November 2000, the federal District Court
granted the mother’s motion and dismissed the
return petition on the basis that the father had
failed to show that the state courts would afford
him adequate opportunity to litigate his petition
under the Convention. The father appealed and
the appeal was allowed. The case was remitted
to the District Court (federal jurisdiction) for the
merits of the return application. In May 2002,
the District Court dismissed the father’s
application. The decision was upheld by a
majority verdict by the United States Court of
Appeals in December 2002. The father then
appealed to the United States Court of Appeals
Eighth Circuit en banc (i.e. the full court, 12
judge bench).
160
Case
Facts
Held
Blondin v.
Dubois, 238
F.3d 153 (2d
Cir. 2001)
The children in this case were 6 and 2 and had
lived in France their entire lives. The parents
were not married and their relationship had
regular acts of domestic violence by the father.
(United States
Court of
Appeals for
the Second
Circuit)
In August 1997, the mother took the children to
the U.S. When the father located the children,
he applied for a return Order under the
Convention.
The Court
dismissed
the appeal
and
affirmed
the nonreturn
order.
Weight
Given to
Child’s
Objection
Significant
weigh
Important Statements & Reasoning
The Court of Appeal noted the district court’s decision to consider Marie-Eline’s
objections to returning to France as yet another factor in the “grave risk” analysis
under Article 13 (b).The district court initially cited the unnumbered provision of
Article 13 that governs a court’s consideration of a child’s views but subsequently
explained it was only one factor under its 13(b) analysis.
The Court of Appeal cited that Convention’s Explanatory Report which states that a
child’s objection may be conclusive provided that the child has attained an age and
degree of maturity sufficient for its views to be taken into account. The Court went
on to say that there was no minimum age at which a child is old enough and
mature enough to trigger the provision.
In August 1998, the United States District
Court for the Southern District of New York
denied the father’s petition. In August 1999, the
United States Court of Appeals for the Second
Circuit allowed the father’s appeal and remitted
to the District Court to consider the remedies
that might allow both the return of the children
to their habitual residence and their protection
from harm pending a custody hearing in
France. In January 200, the United States
District Court for the Southern District of New
York confirmed its initial finding and declined to
order the return of the children. The father
issued a second appeal.
The lawyer representing the U.S. government argued that the unnumbered
provision of Article 13 did not contemplate a general airing of the child’s views as
part of an Article 13(b) analysis of ‘grave risk’, rather, it permitted a court to refuse
return based on the separate ground of an older child’s maturely considered
objection to the return. The lawyer for the U.S. also stated that a court could
consider the testimony of the child as part of the grave risk analysis, although such
a testimony would have to be limited to evidence that the abuse had occurred or
that the return to an abusive parent would pose a great risk of harm.
The Court of Appeal affirmed this analysis – “We agree with the government that
the unnumbered provision of Article 13 provides a separate ground for repatriation
and that, under this provision, a court may refuse repatriation solely on the basis of
a considered objection to returning by a sufficiently mature child”. They also
agreed with the government that a court could consider a younger child’s testimony
as part of an analysis under Article 13(b). However, they disagreed that the child’s
evidence would be limited to the abuse, “Rather, if a child’s testimony is germane
to the question of whether a grave risk of harm exists upon repatriation, a court
may take it into account”.
Re Child’s Objections:
The judge interviewed both children in his
chambers without the mother present. MarieEline told the judge the following:
- She did not wish to return to France
because she was afraid of her father
and she described various instances of
abuse and its effects on her, including
The Court of Appeal summarized the findings of the District Court as:
- Marie-Eline objected to being returned to France explicitly because she did
not want to subjected to further physical and emotional abuse by her father
161
Case
Facts
-
Held
Weight
Given to
Child’s
Objection
her father spitting on her and hitting her
mother, putting something around
Marie-Eline’s neck and threatening to
kill her, and her own fear, nightmares
and inability to eat
When asked if she would like to return
to France if she did not live with her
father, she responded just “one day or
so”
Important Statements & Reasoning
-
-
Marie-Eline was a “bright, poised, intelligent child who has an
understanding of the purpose of these proceedings and spoke thoughtfully
and expressively about her views on being returned to France” and that
she was a “remarkably mature eight-year old”.
The Court considered the possibility that the child had been coached and
concluded that her objections to returning to France were not “the product
of the abductor parent’s undue influence”.
The Court of Appeal rejected the father’s argument that 8 was too young for a
child’s views to be considered. The court replied: “This argument lacks merit. To
accept it we would have to conclude that under the Convention, as a matter of law,
an eight-year-old is too young for her views to be taken into account. We decline to
do so, as this would read into the Convention an age limit that its own framers
were unwilling to articulate as a general rule”.
The Court stated that the father’s argument that the child was opposed to returning
to live with her father specifically vs. truly objecting to returning to France was of
merit. In her conversations, the child had objected specifically returning to live with
her father.
The court concluded that “…although we doubt that the objections expressed by
Marie-Eline would be sufficient, without more, to sustain the judgment in this case,
we cannot say that the District Court clearly erred in finding that she objects to
returning to France”. The District Court’s finding was entitled to deference and the
Court of Appeal declined to “disturb it”. “Accordingly, we conclude that the District
Court did not clearly err in finding that Marie-Eline was old enough and mature
enough for her views to be taken into account, and that it properly considered them
as one factor in a broader “grave risk” analysis under Article 13(b)”.
In summary, the court concluded that the District Court had not erred in
considering the views of the 8 year old child as part of its “grave risk” analysis
under Article 13(1)(n) nor had it erred in finding the child to be old and mature
enough for her views to be considered by the court.
162
Case
Facts
Held
England v.
England, 235
F. 3d 268 (5th
Cir. 2000)
The parties had two children, K (age 13) and V
(age 4). All parties were American citizens. The
family lived in Texas until 1997 when they
moved to Australia for the father’s job.
Appeal
allowed;
children
ordered to
return.
(United States
Court of
Appeals for
the Fifth
Circuit)
In June 1999, the family left Australia for an
extended vacation. They arrived in the United
States in July 1999 for the last leg of their
vacation. Their itinerary scheduled their return
to Australia for July 15, 1999. As planned, the
father returned to Australia that day. Concerned
for the health of her father, the mother
remained in the U.S. Since the mother told the
father that it would possibly be the children’s
last chance to see their grandfather, K and V
remained in the United States with their mother
instead of returning to Australia as planned.
Weight
Given to
Child’s
Objection
No weight
Important Statements & Reasoning
The Father’s Grounds of Appeal
The father argued that the court erroneously argued that K and V’s return to
Australia pending the outcome of the custody proceedings would subject them to a
grave risk of psychological harm, He also argues that K. is not mature enough for a
court to consider her wishes under the Convention.
Grave Risk
The Court of Appeal stated that the District Court’s finding that K and V need not
return to Australia under the terms of the Convention because the return would
expose them to grave risks of psychological harm was erroneous because the
evidence of these psychological risks was neither clear nor convincing. There was
nothing in the record that constituted clear and convincing evidence that a return
would expose K to a grave risk. The Court stated that K’s history of orphanages
and separation from her mother was not proper factors to consider.
Child’s Objections
A few weeks later the mother filed for divorce in
Texas and phoned the father to advise him that
neither she nor the daughters would be
returning to Australia. The father filed for the
children’s return at the District Court
immediately.
The Court of Appeal found that the District Court had also erred in determining that
K was mature enough for the Court to appropriately consider her views under the
Convention. The Convention establishes that a court “may 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 party opposing the child’s return must establish the child’s maturity by
a preponderance of evidence. The court noted that “Like the grave risk exception,
the “age and maturity” exception is to be applied narrowly”.
An Australian Court determined that Australia
was the “habitual residence” of K and V and
that their removal from Australia was wrongful.
The Court of Appeal went on to say that the fact that K has maintained friendships
in America, prefers America to Australia and enjoys a “situation that has
stabilized” does not establish that she is mature enough for a court to consider her
views on where she would prefer to live. Rather, these findings only establish that
K prefers to remain in the United States and that some reasons support this
preference. The Court of Appeal stated that if anything, the preponderance of
The District Court held that even though the two
children were wrongfully removed by their
mother from Australia, their country of habitual
residence. However, the court held that the
children need not be returned to Australia
163
Case
Facts
Held
Weight
Given to
Child’s
Objection
because the return would expose them to grave
risks of psychological harm and because the
older child objected to the return. The Court
determined that K, an adopted child who prior
to her adoption by the family had a turbulent
history in orphanages and foster care, would
face a grave risk of psychological harm if
separated from her mother or forced to move so
soon after resettling in Texas. The District Court
also found that notwithstanding her Attention
Deficit Disorder, learning disabilities, Ritalin use
and emotional issues, K was sufficiently mature
for the Court to give credit her desire to remain
with her mother and not return to Australia. The
Court declined to separate V from her older
sister because it would be psychologically
damaging to both children to be separated.
Accordingly, the court allowed K and V to
remain in the U.S. with her mother.
Important Statements & Reasoning
evidence in the records suggested that K was not mature enough for the Court to
take into account her views. “By no fault of her own K has had four mothers in
twelve years. She has been diagnosed with Attention Deficit Disorder, has learning
disabilities, takes Ritalin regularly, and is, not surprisingly, scared and confused by
the circumstances producing this litigation. In view of this evidence and the
narrowness of the age and maturity exception to the Convention’s rule of
mandatory return, we hold that the District Court erroneously found K. mature
enough to trigger this exception to the Convention”.
WALES
Case
Re F. (A Child)
[2009] EWCA
Civ 416
(Court of
Appeal, Civil
Dvision)
Facts
The child was born in Poland to Polish parents
and had always lived in Poland. The parents
divorced in 2006. An order obtained in July
2007 granted the father alternate weekend
contact with the child.
In August 2007, the mother travelled to Wales
to visit her Polish boyfriend. On this vacation,
Held
Appeal
dismissed
and return
refused.
The
removal
was
wrongful
Weight
Given to
Child’s
Objection
Significant
Weight
Important Statements & Reasoning
Child Objections
The Court of Appeal noted that the mother presented a clear case that P objected
to the return. She offered three reports from a CAFCASS officer in Wales who had
extensive conversations with P. The CAFCASS officer stated that OP had a
maturity in advance of his chronological age (para. 5).
The Court of Appeal reviewed the trial judge’s decision. In the exercise of his
164
Case
Facts
she unilaterally withheld the return of the child.
The father claimed that he did not know where
the child was until April 2008. Return
proceedings were issues in June 2008.
At the time of the appeal, the child was 9 and
½.
Held
Weight
Given to
Child’s
Objection
but the
child
objected to
going
back, was
of
sufficient
age and
maturity
and the
trial judge
had
correctly
exercised
his
discretion
in
upholding
the child’s
objections.
Important Statements & Reasoning
discretion, the trial judge noted that the boy was Polish, that Polish remained his
first language as well as his mothers, and that his entire life had been spent in
Poland until the age of 8. He held that it was far from self-evidence that it would be
in the child’s best interests to remain in Wales (para. 5). The trial judge concluded
that the child’s views matched what was in his best interests. He had been living in
Wales for 18 months, he was settled there and had money friends and his entire
maternal family had relocated there (para 5)
The father’s appeal claimed that the trial judge gave undue weight to some factors
and inadequate weight to others. The Court of Appeal stated that “The weight that
each deserves is very much a matter for the judge” (para. 6) and that there was no
basis on which to challenge the decision of the trial judge.
165