Case Re P (Abduction: Child’s Objections): The views of the child
As I am sure the reader of this blog will well know, the court, when considering whether to make a child arrangements order, must have regard to (amongst other things) the ascertainable wishes of the child concerned, considered in the light of the child’s age and understanding.
Similarly, in an application for the summary return of an ‘abducted’ child under the 1980 Hague Child Abduction Convention, it is specifically stated in the Convention that the 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.”
As will be seen, the critical point in both instances is the child’s understanding of the issues involved. Note that neither provision makes mention of a ‘cut-off’ age, whereby once the child has reached that age then its views will sway the court to make a decision in accordance with those views.
Now, it is usually pretty clear whether or not the child has sufficient understanding of their views to sway the court. For example, an eight-year-old child will almost certainly not, whereas a fifteen-year-old child almost certainly will. But that, of course, leaves a ‘grey area’ in the middle, where it is not clear what weight if any, the court should give to the child’s wishes.
In the recent Court of Appeal case Re P (Abduction: Child’s Objections), the court had to decide how to approach the objections of a 13-year-old child to an order that he and his siblings be returned to Germany.
The parents in the case were both German nationals. They married in 2005 and continued to live in Germany. Their three children, now aged 13, 11 and 8, were all born there and are German nationals.
The parents separated in 2012. The children lived with the mother and the father had regular contact, including staying contact.
Contact problems began in 2015 after the mother remarried, and in 2016 the father applied to the German court for contact. The court ordered a psychological report which concluded, in December 2017, that it was strongly in the interests of all of the children to have contact with the father.
On or about the 23rd of March 2018 the mother brought the children to this country, without telling anyone where she was going. The father did not discover that they were living here until December 2018. He then commenced proceedings under the 1980 Convention, which led to the precise location of the children being established in April 2019.
In October 2019 the High Court refused an application to join the child as a party to the proceedings (so that he could be separately represented) and made an order requiring the three children to be returned to Germany.
The oldest child, who objected to the order, applied to be joined as a party to the proceedings, initially for the purposes of appealing the order.
The case Re P (Abduction: Child’s Objections) went before the Court of Appeal in January. As explained by Lord Justice Moylan, who gave the leading judgment, the court had to decide two matters:
- Whether the child should have been joined as a party to the proceedings in the High Court; and
- Whether the judge was wrong to order his return when he objected to returning to Germany, despite finding that he was of an age and degree of maturity at which, in accordance with the 1980 Convention, it was “appropriate to take account of his views”.
On the first matter, Lord Justice Moylan found that the judge’s decision not to join the child was “plainly right”. The child’s views had been clearly presented to the court, and there was nothing to be gained by him being separately represented.
On the second matter, the judge was plainly aware of the strength of the child’s objections and of his age and degree of maturity and expressly took them into account. However, he was entitled to find that those objections were outweighed by other factors, including his finding that the child’s views were in part a product of the mother’s antipathy towards the father, and resistance to any idea of contact.
Accordingly, the child’s application to be joined to the proceedings, and for the order made under the 1980 Convention to be set aside, were dismissed.
You can read the full judgment in the case Re P (Abduction: Child’s Objections) here.
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