CB v CB (Abduction: Child’s Objections)  EWHC 2092 (Fam)
(Family Division; Peter Jackson J; 10 April 2013)
The British father and Australian mother married in England where their son, now 14, was born. They separated when he was 3. For the next 8 years the boy and his mother lived in this country with the boy keeping in touch with his father. The mother and the boy then went to Australia for a trip, intended to last for a year, with the consent of the father; he agreed to a further year’s extension. During that time the father maintained contact by visiting Australia and on two occasions the mother brought the boy to England. On the second of those occasions the father promised he would return the boy in time for his return flight in January 2013 but failed to do so. He claimed that the boy did not wish to return to Australia with his mother. The Cafcass officer considered that the boy was mature, saw his home as England and had formed the considered and deliberate view that he did not wish to return; the mother considered that he was a vulnerable child and had been manipulated by the father. The mother returned alone to Australia and launched the present proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980.
Held – dismissing the mother’s application; directing that the parents agree the future contact arrangements –
(1) Under Art 12 of the Convention the boy had been wrongfully retained in England; he was habitually resident in Australia and his mother was exercising rights of custody in respect of him. However, although the basis for his objections to returning may or may not have been right his views were rational and amounted to an objection within the meaning of the exception in Art 13 of the Convention. In light of his age and maturity they should be taken into account.
(2) In considering the boy’s welfare, the court would exercise its discretion not to return him to Australia and any further questions about his welfare would be decided by the present court.
This case is interesting from the point of view of the child who had clearly expressed an honest wish to stay in one country. The most important thing here is that the views of child were his own and once this was accepted by the Court it was hard for the judge not to consider his opinion. In considering the view of a child in Hague Convention proceedings the age and maturity of the child will be very important. A child may not be able to grasp all the issues but once that child is given a rationale opinion it is likely that any Court will have to take this into consideration.