CASE

No full text available

Case Name

Re W. (Children) [2010] EWCA Civ 520, [2010] 2 F.L.R. 1165

INCADAT reference

HC/E/UKe 1324

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

Court of Appeal (Civil Division)

Level

Appellate Court

Judge(s)
Sedley & Wilson L.JJ.

States involved

Requesting State

IRELAND

Requested State

UNITED KINGDOM - ENGLAND AND WALES

Decision

Date

12 May 2010

Status

Final

Grounds

-

Order

-

HC article(s) Considered

13(1)(b) 13(2)

HC article(s) Relied Upon

13(1)(b) 13(2)

Other provisions

-

Authorities | Cases referred to
Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192 Re J and K (Abduction: Objections of Child) [2004] EWHC 1985, [2005] 1 FLR 273.
Published in

-

INCADAT comment

Exceptions to Return

General Issues
Impact of Convention Proceedings on Siblings and Step-Siblings
Child's Objection
Requisite Age and Degree of Maturity

SUMMARY

Summary available in EN

Facts

The proceedings related to three children aged 8, 6 and 3 at the time of the hearing. They had lived in Ireland with their British mother and Irish father until 19 June 2009 when they were removed by the mother to London. The parents' relationship was difficult and gave rise to occasions of violence and problems with alcohol.

10 days after the removal the father travelled to London and in September 2009 he persuaded the mother to undertake a trial period of reconciliation. This failed and the father returned to Ireland on 16 November, whereupon he issued return proceedings.

On 4 March 2010 the Family Division of the High Court refused the father's application, finding that whilst the removal had been wrongful the two older children had valid objections and consequently, should not be sent back. It was further held that were the youngest child to be sent back alone there was a grave risk he would be exposed to psychological harm or be placed in an intolerable situation: W v W [2010] EWHC 332 (Fam).

On 14 April the father sought permission from the Court of Appeal to appeal against the non-return order. Permission was refused and the Court handed down its reasons on 12 May.

Ruling

Leave to appeal refused and non return order therefore confirmed; the trial judge had been entitled to accept the objections of the two older children and to exercise her discretion not to return any of the children.

INCADAT comment

Impact of Convention Proceedings on Siblings and Step-Siblings

Preparation of INCADAT commentary in progress.

Requisite Age and Degree of Maturity

Article 13(2) does not include a minimum age from which the objections of a child must be ascertained, rather it employs the formula that the child must have ‘attained an age and degree of maturity at which it is appropriate to take account of its views.'  Nevertheless it was the intention of the drafters that the exception would be primarily directed towards teenagers who were not prepared to go back to their home State.

Undoubtedly influenced by domestic family law practice, different patterns emerged in Contracting States as to the manner in which this exception has been applied.  Moreover those patterns may have evolved in jurisdictions during the life span of the application of the Convention, particularly as greater recognition has been paid to children as legal actors in their own right.  Indeed in the European Union, at least as regards intra-EU abductions, there is now an obligation that a child is given an opportunity to be heard, unless this appears inappropriate having regard to his age or maturity: Council Regulation 2201/2003, Art. 11(2).

The issue of age and maturity is also closely inter-related with the threshold applied to the exception, that is to say the criteria used to determine the circumstances in which it may be appropriate to take a child's objections into account, see for example: Re T. (Abduction: Child's Objections to Return) [2000] 2 FLR 192 [INCADAT cite HC/E/UKe 270]; Zaffino v. Zaffino [2006] 1 FLR 410 [INCADAT cite HC/E/UKe 813]; W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805]; White v. Northumberland [2006] NZFLR 1105, [INCADAT cite: HC/E/NZ 902].

Australia

H.Z. v. State Central Authority [2006] Fam CA 466, INCADAT cite: HC/E/AU 876

8 year old expressed objections which went beyond the mere expression of a preference or of ordinary wishes, however, in the light of her age and degree of maturity it would not be appropriate to take account of her views.

Director-General, Department of Families, Youth and Community Care v. Thorpe (1997) FLC 92-785 INCADAT cite: HC/E/AU 212]

Objections of 9 year old upheld

Germany

4 UF 223/98, Oberlandesgericht Düsseldorf, [INCADAT cite: HC/E/DE 820]

No fixed age limit.  The 8 year old concerned lacked sufficient maturity.

93 F 178/98 HK, Familengericht Flensburg (Family Court), 18 September 1998, [INCADAT cite: HC/E/DE 325]

Objections of 6 year old gathered, but not upheld. 

Ireland

In the Matter of M. N. (A Child) [2008] IEHC 382, [INCADAT cite: HC/E/IE 992

Detailed assessment of the age at which the views of a child should be heard in the light of Article 11(2) of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003).  Order made that the views of a 6 year old be ascertained.

New Zealand

U. v. D. [2002] NZFLR 529, INCADAT cite: HC/E/NZ 472

Objections of 7 year old considered, but not upheld.

Switzerland

5P.1/2005 /bnm, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 795

No minimum age.  Children aged 9 1/2 and 10 ½ heard, but their objections were not upheld.

5P.3/2007 /bnm, Bundesgericht, II. Zivilabteilung, [INCADAT cite: HC/E/CH 894

A child would have the requisite maturity if he was able to understand the nature of the return proceedings. It was not possible to give general guidance as to the minimum age from which a child would be able to deal with such an abstract issue. The Court noted however that research in the field of child psychology suggested a child would only be capable of such reasoning from the age of 11 or 12.  The court of appeal had therefore been entitled not to gather the views of children, then aged 9 and 7.

United Kingdom - England & Wales

Re W (Minors) [2010] EWCA 520 Civ, [INCADAT cite: HC/E/UKs 1324

Objections of siblings aged 8 and almost 6 upheld.

The Court accepted that the objections of a child of 6 falling within the exception would have been outside the contemplation of the drafters.  However, Wilson L.J. held that: "...over the last thirty years the need to take decisions about much younger children not necessarily in accordance with their wishes but at any rate in the light of their wishes has taken hold... ."

United Kingdom - Scotland

N.J.C. v. N.P.C. [2008] CSIH 34, 2008 S.C. 571, [INCADAT cite: HC/E/UKs 996

Views of 9 ½ year old not gathered; objections of her 15 and 11 year old siblings not upheld.

W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805]

9 year old not of sufficient maturity to have her views considered - decision of trial judge reversed.

United States

Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) INCADAT cite: HC/E/USf 585]

No minimum age at which objections of a child can be ascertained.  Objections of 8 year old, within the context of an Art. 13(1)b) assessment, upheld.

Escobar v. Flores 183 Cal. App. 4th 737 (2010), [INCADAT cite: HC/E/USs 1026]

No minimum age at which objections of a child can be ascertained.  Objections of 8 year old upheld.