Children’s objections to a return order

“The ethos of the Convention is that the courts where the children are habitually resident will decide what is best for the children on all the available evidence, and on the basis of a timescale allowing for proper enquiry and consideration in the home state; the decision about what is best for the children will not, in effect, be predetermined by one party making a change of plan without consultation and based on personal desires.”

So said Ms Susan Jacklin QC in the case Y & Z (Children : Hague Convention). In other words, where a child has been wrongfully removed from the country where they are habitually resident, the court should order their return forthwith, and it is for the ‘home’ court to make decisions as to the child’s welfare. There are, of course, defences to this general rule, set out in Article 13 of the Convention. One of those defences is that the court of the country to which the child has been removed 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.” This was the central issue in Y & Z.

The facts of the case were that the parents had been in a relationship since 2001, and they married in 2014. They have two children, a boy ‘Y’, who is aged 15, and a girl ‘Z’, who is aged 11. The children were born and brought up in England, but in 2015 the family relocated to the USA, although Y remained at boarding school in England for another year.

On 4 June 2017 the mother travelled to the UK with the children for the purposes of a holiday. The father joined them on 4 July. It was intended that the family would return to the USA on 2 August. However, by the end of July the parents’ relationship had broken down, with the mother being involved in a relationship with another man. The father returned to the USA alone on 2 August, the mother saying that she needed time to think and that she would return to the USA a week later. However, on that day she instructed solicitors to commence divorce proceedings.

On 18 August Y messaged his father asking him to book a flight to the USA as soon as possible, and the father duly booked a flight for 23 August. However, Y changed his mind and did not return to the USA. On 25 August the father issued an application under the Hague Convention for the summary return of the children to the USA.

The mother initially claimed that the children were actually habitually resident in this country and that there had therefore been no wrongful removal, and that if they were to return to the USA, the children faced a grave risk of harm. However, both of these defences were dropped prior to the hearing of the case, with the mother then relying on the ‘children’s objections’ defence.

The views of the children were ascertained by a Cafcass officer, who interviewed them and found that:

“In essence, the children expressed a wholly negative view of their life in the USA and in particular their school and social experiences, and a recurring theme was that they want to live with their mother who, they know, does not want to return to live in the United States of America.”

Further to this, they both felt that they belonged in the United Kingdom, and had far greater connections here in terms of family and friends. Z also focused on wanting to stay with her mother and being with her family in England.

Counsel for the father suggested that perhaps the focus of the children, Z in particular, was much more on staying with the mother, rather than not returning to the USA. Ms Jacklin found this to be a “nice point”, and noted that the children were not presented with the option of going back with their mother to the USA, but concluded that they did object to returning to the USA.

She also found (as the father conceded) that the children had attained an age and degree of maturity at which it was appropriate to take account of their views.

However, she found that the children had been heavily influenced by being enmeshed with their mother’s feelings, which undermined the weight to be attributed to their objections. For example, it was clear from the evidence that the children were involved in the process of the mother’s engagement with her solicitor, helping the mother compose a letter that formed the basis of an email from the mother’s solicitors on 21 August that set out her proposals regarding the children. It was also clear that Y had only changed his mind about returning to the USA because he was aware that his father had not agreed his mother’s terms as set out in the solicitor’s email. Further evidence of the mother involving the children in the proceedings occurred on 19 September when the children visited their father, he having come to England for the purpose of seeing them. His solicitor’s letter sent the next day recounted what happened:

“Our client informs us that Z shouted that our client was “in control of all this and you can make it stop” and that he was “stopping her” from “moving on with her life”. She had stated that she had seen her “mother crying on the floor’”.

That, said Ms Jacklin, strongly reinforced the impression that she had had from all the other evidence, that the children had been drawn into their mother’s feelings and views: How could Z possibly have known that her father was in control of the process and could withdraw the application unless her mother had told her?

In the circumstances the weight to be given to the views of the children was not sufficient to refuse the return of the children. It was therefore ordered that they be returned to the USA forthwith.

The full report of the case can be found here.