A summary of the decision in the child abduction case FK v ML (Child’s Objections) which was handed down by Sir Peter Singer in the High Court on 11 March.
For the benefit of those who are not au fait with it, I shall begin this post with a very brief explanation of the relevant parts of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (not to be confused with the 1996 Hague Convention on Parental Responsibility and the Protection of Children).
The primary purpose of the Convention is to ensure that children wrongfully removed from one Contracting State are promptly returned to that State. Accordingly, Article 12 of the Convention provides that where a child has been wrongfully removed or retained and a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned (i.e. the court of the State to which the child was removed) shall order the return of the child forthwith. A return can also be ordered after one year has elapsed since the removal, unless it is demonstrated that the child is now settled in its new environment.
One of the presumptions behind the Convention is that if there is any dispute as to arrangements for the child, the most appropriate court to determine that dispute is the court of the country where the child has been residing. The return order does not therefore determine any such dispute, but rather ensures that the dispute is dealt with by the most appropriate court, i.e. the child’s home court.
As can be seen, the requirement to order a return is quite strict: the Convention is intended to act as a deterrent to abductions and wrongful removal. However, there are three circumstances in which a court is not bound to order the return of the child, and these are set out in Article 13 (note I am simplifying here for the sake of clarity):
- That the parent who did not remove the child consented to or subsequently acquiesced in the removal or retention; or
- That there is a grave risk that his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation; or
- 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.
OK, to the case. The facts were, briefly, that the parents lived together in England until they separated in 2007, after which the father went to live in Dublin. There were two children of the family, A, who is aged 13 and his half-brother B, who is now aged 19. Both children remained with their mother.
In 2012 A and B were the subject of care and private law proceedings, as a result of which both children were removed from mother’s care, due to concerns about her ability safely and appropriately to manage their upbringing. In particular, it was found that she had a tendency to turn to alcohol for support at times of stress, and that this threatened the children’s emotional and physical well-being. Accordingly, residence orders were made in favour of the father and his parents, who live nearby and provide him with support and assistance.
The parents agreed contact arrangements for A and, in accordance with these, it was agreed that A would have staying contact with his mother in London from 16 December 2015 until 4 January 2016. A was not returned to his father at the end of this period, and his father therefore applied for his return, pursuant to the Hague Convention.
The return order was opposed, on the twin grounds that his return to Ireland would give rise to a grave risk that A would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation, and that A objected to the return. The background to these things was that A had got into trouble at school and was twice suspended. It appeared that his father responded to this by applying supplemental discipline to A, including confiscating his mobile phone. A resented this and matters came to a head in November 2015 when A claims his father was abusive towards him, including on one occasion punching him on the lip, an allegation that was not later repeated.
The father responded to these allegations by agreeing that if A were returned to Dublin he would stay with his grandparents until such time as the Irish court had dealt with the issues relating to him. Sir Peter Singer accepted that this arrangement was adequate to secure A’s protection and therefore he could not refuse to return A on the basis that doing so would expose him to the risk of harm, even if he considered that ordering A’s return would expose him to that risk (which he did not in any event).
Turning to the issue of A’s objection to the return, one would have thought that such serious allegations by a thirteen year old might have swayed the court into refusing a return. Sir Peter Singer did accept that A’s objections were sufficient to trigger the Article 13 exception, therefore giving the court a discretion not to order a return, but after careful consideration he concluded that they were not such that he should exercise that discretion. He found that the development of A’s objections had been influenced by his mother and by B, who has returned to live with his mother and is now strongly supportive of her. Against this background Sir Peter could not give full weight to A’s objections. Further, he considered that A’s prospects were far better if he were to be returned, rather than remain with his mother, where there was a risk of further incidents such as led to the 2012 care proceedings.
Accordingly, it was ordered that A should return to Ireland.
The full report of FK v ML can be read here.
Photo of Dublin, Ireland by melfoody via Flickr