Re SR (A Minor) (Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 24 April 1991 |
| Court | Family Division |
BRACEWELL, J
Child abduction – mother wrongfully removing child from Germany – discretion of English court to refuse to order return of child where child objected to return.
The child, a girl aged 14½, was brought to England from Germany by her mother. The child's removal from Germany was wrongful and in breach of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction. The child's aunt and guardian applied under the Child Abduction and Custody Act 1985 for the child to be returned to Germany. The mother opposed the application on the ground set out in Article 13 of the Convention that there was a grave risk that her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. She relied on complaints by the child of sexual and physical abuse of her within the aunt's families.
Held – (1) The objects of the Convention were to ensure the prompt return of children wrongfully removed from a contracting State and to ensure that rights of custody and access under the law of the contracting State were effectively respected. The Convention was not concerned with establishing the person to whom custody of the child would be granted in the
future. The mother bore the burden of proving under Article 13 of the Convention that there was a grave risk that the child's return to Germany would expose her to physical or psychological harm or otherwise place her in an intolerable situation. She had failed to discharge that burden. In any event the abuse alleged by the mother could be considered by the German courts which had been seised of the case throughout the years and were able to adjudicate. Further the child welfare service in Germany knew of the case.
(2) However, under Article 13 of the Convention the court had a discretion to refuse to order the return of a child if it found that the child objected and had attained an age and degree of maturity at which it was appropriate to take account of its views. For a child to "object" to being returned, the child had to do more than express a mere preference. In this case the child had expressed strong views against her return even to the extent of contemplating suicide, and it was clear that she had come to that conclusion of her own volition. Therefore, the court would exercise its discretion not to order the child's return to Germany.
Mark Everall for the aunt.
Shahid Rashid for the mother.
MRS JUSTICE BRACEWELL.In this...
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