S v S (Child Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Court | Court of Appeal (Civil Division) |
GLIDEWELL, BALCOMBE AND BOREHAM, L JJ
Child abduction – child objecting to return after wrongful removal – discretion not to order return – factors to be taken into account.
The parents were married in 1979. The mother was English and the father was French. They married in England but had never made their home in this country. Their only child, a girl, was born in 1982. As a result of the father's job, the family lived in various countries. On March 1991 they returned to live in France. The marriage had been in difficulties for some years and in the autumn of 1991 the parents were considering divorce. On the advice of their lawyers they entered into a deed of separation which they signed on 7 November 1991. On 24 November 1991 the mother left France with the child and came to England. The father applied under the Hague Convention for the child's return to France and the matter came before Ewbank, J on 17 January 1992. It was conceded that the child's removal was wrongful under Article 3 of the Convention, and that under Article 12 the court was prima facie bound to order the immediate return of the child to France. However, it was submitted that Article 13 applied and that the Judge had a discretion not to order the child's immediate return: first, because there was a grave risk that the child's return would expose her to psychological harm; and secondly, because the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her views.
The child had long-standing psychological problems which had manifested themselves in speech difficulties when she spoke French. It was the advice of a French speech therapist that she should be educated in English. There was evidence before the Judge that the child did not wish to return to France. She was seen by the court welfare officer who confirmed that the child was mature enough to appreciate the situation and had expressed a strong view that she did not wish to return to France. The welfare officer said the child had clearly expressed an independent view and was not influenced by the mother. The child said she had felt under pressure in France where she was forced to speak French, had lost her stammer as soon as she came to England, and made a very emotional plea that she felt more at ease in England.
The Judge held that he was not persuaded that there was a grave risk of psychological harm if the child returned to France. However, he held that although he was not entitled under the Convention to consider the child's best interests, in deciding whether the child's views were mature, if they coincided with what he thought was her best interests, he was entitled to take that into account in assessing the child's maturity. He was of opinion that the child had formed an intelligent and sensible decision. Therefore, he refused to order her return to France on that ground.
The father appealed. The appeal was argued solely on the issue of whether the child had attained an age and maturity at which it was appropriate to take account of her views.
Held – dismissing the appeal: The scheme of the Hague Convention was that it was normally considered to be in the best interests of children generally that they should be promptly returned to the country from which they had been wrongfully removed. The terms of Article 12 gave effect to this approach. In exceptional circumstances, as set out in Article 13, the court had a discretion to refuse to order an immediate return. Article 13 provided that the court was not bound to order the return of the child if, under para (a) there was consent or acquiescence; or if, under para (b), there was a grave risk of physical or psychological harm of the child being placed in an intolerable situation. The court was also not bound to order the return of the child if it found that the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of its views. The terms of that part of Article 13 which related to the child's objection to being returned were to be interpreted literally: see Re M (Minors) (Abduction)[1992] 2 FCR 608. There was no warrant for importing the gloss that the child's objection imported a strength of feeling far beyond the usual ascertainment of the wishes of the child in a custody dispute as was held in Re SR (A Minor: Abduction)[1992] 1 FCR 101. It was a question of fact for the Judge whether the child objected to being returned and whether the child had attained an age and degree of maturity at which it was appropriate to take account if its views. It would be necessary for the Judge to ascertain why the child objected to being returned. If the only reason was to remain with the abducting parent, who was also unwilling to return, this would be a highly relevant factor when the Judge came to consider the exercise of discretion. There was no age below which a child was to be considered as not having attained sufficient maturity for its views to be taken into account. If the court found that the child's views had been influenced by the abducting parent, or that the objection to return was because of a wish to remain with the parent, then it was probable that little or no weight would be given to those views. In the present case, the child objected strongly to being returned to France. Her views, as given to the welfare officer, had substance and were not merely a desire to remain with the mother. There was no ground to interfere with the decision of the Judge.
Decision of Ewbank, J [1992] 2 FCR 113 affirmed.
Patricia Scotland, QC and Henry Setright for the father.
Allan Levy, QC and Brian Jubb for the mother.
LORD JUSTICE BALCOMBE.This appeal, from an order of Ewbank, J made on 17 January 1992 whereby he dismissed an application under the Hague Convention on the Civil Aspects of International Child Abduction for the return to France of a nine-year-old girl, raises once again a question under Article 13 of that Convention. The judgment that follows is that of the court and we repeat the direction given during the course of the hearing that nothing should be published which may identify the child concerned.
The child was born on 9 August 1982. Her mother is English, aged 48; her father is French, aged 46. The father is a petroleum engineer whose work takes him to many parts of the world. The parents met in Indonesia, where the mother was working as a secretary with the United Nations. They married in England in 1979. When the mother became pregnant with the child (their only child) they were living in Borneo.
The mother came back to England for her confinement and spent a few months in England after the child's birth, but then returned with the child to the father in Borneo. In September 1984 the family moved to Paris, France. In September 1985 the family moved to Harstad, Norway. In November 1986 the family moved back to Paris, and the child spent two months in a French school. In February 1987 they moved to Stavanger, Norway. From February to June 1987 the child attended a French school in Norway. From September 1987 until they left Norway in March 1991, the child attended the Stavanger British School. In March 1991 the family returned to Paris as their...
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