The primary objective to the 1980 Hague Convention includes to secure the prompt return of children wrongfully removed to or retained in any contracting state. The Convention is intended to have a deterrence effect, deterring potential abductors of children from wrongfully removing them from a jurisdiction or retaining them.
If habitual residence is established in one country, then the primary intention behind the Hague Convention is to provide for the prompt return of the child to that country.
There are exceptions to this which permit the Court to look beyond the question of habitual residence (you can find out more about habitual residence and parental consent in this article).
The Court case
A recent case has highlighted the approach to exceptions where it is argued that there is a grave risk that the child’s return would expose that child to physical or psychological harm or otherwise place the child in an intolerable situation.
Also, it was argued in this recent case (F & G, judgment date 11.12.2024) that the child themselves objected to going back.
In this case the Court considered the position of a father opposing an application for summary return of his 11-year-old daughter back to her mother’s care in Poland. It was accepted that this child was habitually resident in Poland. The father sought to argue both that the child did not wish to return to Poland and also that she was at risk in her mother’s care.
The Court considered the risks that had been alleged. It was for the father to evidence any risk, and such risk must be demonstrated to have reached a level of seriousness that it could be characterised as “grave”. The Court indicated that when a risk of harm is evaluated it should be assumed at it highest, and then if that risk is assessed to be grave the Court should go on to consider whether there are any protective measures sufficient to mitigate the harm that has been identified.
In this case the Court considered whether the allegations were true before then going on to consider whether they could potentially establish the existence of a grave risk and if so, how the child could be protected against any risk.
The Court also considered the child’s objection to returning to Poland. The Court had the benefit of a report from CAFCASS who had considered the girl’s stated wishes and feelings including it being said that she would feel really scared and sad if returned to Poland, but this was also in the context of CAFCASS believing that she and her sibling had felt required to take sides with one or other parent and that had created division, separation and long standing conflict in the family. There were concerns about the girl’s emotional vulnerability and it could not be ruled out that she may have experienced pressure that had contributed to those expressed wishes and feelings.
The Court considered the child’s wishes and feelings, assessing that she attained an age and degree of maturity which meant that it was appropriate to take account of her views. The Court outlined the two stage test it needs to take with assessing a child’s views, first the “gateway” stage establishing whether as a matter of fact the child objects to be returned, and then the second stage with the Court exercising its discretion considering factors including the nature and strength of the child’s objections, the extent to which the objections are authentically those of the child or caused by outside sources, and thirdly the extent to which those wishes and feelings coincide with or are at odds with other factors when taking into account the child’s welfare. In addition, the Court identified a fourth factor to take account of namely that general Hague Convention considerations would point towards return of the child to the country within which they were habitually resident.
The Court’s decision
Dealing first with the allegations made by the father the Court considered they did not meet the grave risk of harm/intolerability criteria. The Court considered they were not of sufficient detail and the Court considered in any event protective measures could be put in place.
Considering the child’s own stated objections and taking account of the factors listed above, the Court considered the welfare considerations and convention factors combined with matters including concerns as to the influence of the child’s father regarding her views enabled the Court to exercise its discretion to override the child’s own objections.
Upon this basis the Court ordered the summary return of the child to Poland to live with her mother.
All of the above illustrates the importance that if putting forward an argument that a case is an exception to the Hague Convention then there is a need for clear and compelling evidence to demonstrate falling within any claimed exception.
We appreciate that situations arise that become very difficult and at Stephens Scown we have specialist children solicitors to help you look at all the options and help you find a solution. Please get in touch today on: 0345 450 5558 or: enquiries@stephens-scown.co.uk