Re HB (Abduction: Children's Objections to Return)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Date | 1997 |
| Court | Family Division |
HALE, J
Child abduction – children living in Denmark with mother – visiting England to stay with father – wrongful retention by father – children objecting to return – whether grave risk of physical or psychological harm to children if returned – whether children's objections to return were such as to outweigh policy of Hague Convention.
The parties were married in 1982. The father was English and the mother was Danish. They had two children, a boy born in 1983 and now 13 and a girl born in 1985 and now 11. The family lived in England until 1989 when the marriage broke down and the mother and children went to live in Denmark. Subsequently the parents were divorced. In 1990, on the father's application, orders were made in wardship: care and control of the children being given to the mother and staying access to the father.
Both parents remarried. The father remained living in England with his second wife and her children. The mother lived in Denmark with her second husband.
The father had access to the children as ordered in 1991 and 1992 but in 1993 the mother refused to allow access. She said she did so because she believed the father would not return the children but there was evidence that the real reason was the father's inability to pay maintenance for the children. The father took action to enforce the court order made in 1990. This led eventually to the intervention of the Danish authorities and an agreement being reached that the children should come to England and stay with the father from 21 June to 10 August 1996.
In 1994 or 1995 the boy began to have behavioural difficulties which led to his being placed in a children's home in Denmark. The boy's behaviour led the mother to suggest that he came to live with the father. Nothing was agreed.
However, about a month before the agreed contact visit the mother sent the boy to the father in England with a one-way ticket. The girl followed on 23 June, the father supplying a return ticket.
In July 1996 the father informed the mother that he would not be returning the children and applied for a residence order. The mother began proceedings under the Hague Convention for the return of the children. The father conceded that the children's retention in England beyond the agreed date of return was wrongful in terms of the Convention but resisted their return on three grounds. First, that under Article 13(a) of the Convention the mother had consented to the retention of the children here. Secondly, that under Article 13(b) there was a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable position because of ill-treatment by the mother and the step-father. Thirdly, that the children objected to being
returned and had attained an age and degree of maturity at which it was appropriate to take account of their views.
Held – ordering the children's return to Denmark: (1) Hague Convention cases always presented difficulties for the court because it was not the court's function to determine where the children's best interests lay. Their welfare was not the paramount consideration. The object of the Convention was to ensure that children were returned to the country of their habitual residence for their future to be decided by the appropriate authorities there.
(2) There was no evidence to support the contention that the mother consented to the retention of the girl in England. The position regarding the boy was more difficult. Although there was discussion between the parents about the boy staying in England, the idea was open-ended and there was clearly no consent by the mother that the boy should stay in England permanently.
(3) The defence under Article 13(b) of the Convention that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable position carried a heavy burden of satisfying the court that there would indeed be a grave risk of substantial harm. Otherwise, there was the risk that the courts in the country to which the children were abducted or in which they were wrongfully retained would be tempted to try the custody or other dispute between the parties. In the circumstances of the present case the evidence added up to some insensitivity on the part of the mother and the step-father and from time to time some inappropriate chastisement. But it did not add up to deliberate ill-treatment or abuse such as would expose either of the children to a grave risk of physical or even psychological harm.
(4) As to the defence under Article 13 that the children objected to being returned, this was quite separate from Article 13(b) and did not depend on their being at grave risk of intolerable physical or psychological harm or their being placed in an intolerable situation if returned. Also the words of the Article relating to the children's objection were to be read literally without any additional gloss. There was no doubt that the children objected to being returned and they were of an age and degree of maturity in which their views should be taken into account. However, the children's objections and the reasons for them had to be weighed against the whole policy of the Convention which was that children should be returned to have their future decided in the country of their habitual residence. This policy was particularly important in cases where children came to another country for visits. It was in the best interests of children whose parents lived in different countries that the parent with whom they lived should feel able to send them on visits secure in the knowledge that the children would be returned without difficulty. The real strength of the girl's objections, the reasons for them and the evidence of relationships at home were not enough to set against the policy of the Convention. The boy's objections were stronger and quite rational objections. However, it was not usually advisable to separate siblings who were close in age and obviously allied to one another and singling the boy out for different treatment from his sister did not seem an appropriate response to the problems he was presenting. It was a strong thing to order return in the face of such strong objections from a child of this boy's age. The mother and the Danish authorities should give very careful consideration to the difficult position in which the father and the children, especially the boy, found themselves.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"), Article 13.
Cases referred to in judgment:B v K (Child Abduction)[1993] 1 FCR 382.
R (Minors) (Child Abduction), Re[1995] 2 FCR 609.
S v S (Child Abduction)[1993] 1 FCR 12; sub nom Re S (Minors) (Abduction: Custody Rights) [1993] Fam 242; [1993] 2 WLR 775; [1993] 2 All ER 683.
SR (A Minor) (Abduction), Re[1992] 1 FCR 101.
...
To continue reading
Request your trial
-
MM v RR
... [2010] 2 IR 162; FN and EB v CO (Guardianship) [2004] IEHC 151, [2004] 4 IR 311; Re HB (Abduction: Children's Objections to Return) [1997] 3 FCR 235; IP v TP (Child abduction) [2012] IEHC 31, [2012] 1 IR 666; In Re E (Children) [2011] UKSC 27, [2012] 1 AC 144; In Re D (Abduction: Rights o......
-
Njc v Npc
...(Abduction: Children's Objections) (Re)FLRUNKUNKFLRUNKUNK [1998] 1 FLR 422; [1998] 1 FCR 398; [1998] Fam Law 128 and [1997] 1 FLR 392; [1997] 3 FCR 235; [1997] Fam Law 312 Hogg v Motherwell District Council 12 December 2001, unreported Ignaccolo-Zenide v RomaniaHRC (2001) 31 EHRR 7 J (Child......
-
The Attorney General v Skerritt
...place of habitual residence immediately before the alleged wrongful retention. 53 In Re HB (Abduction: children's Objections to Return) [1997] 3 FCR 235 , the court in dealing with the return of two children after finding that they had been wrongfully retained in Denmark, considered the wei......
-
Attorney General of Saint Christopher & Nevis Claimant v Lisa Skerritt Defendant [ECSC]
...place of habitual residence immediately before the alleged wrongful retention. 53 InRe HB (Abduction: children's Objections to Return) [1997] 3 FCR 235, the court in dealing with the return of two children after finding that they had been wrongfully retained in Denmark, considered the weigh......