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Nombre del caso
Re W. (Children) [2010] EWCA Civ 520, [2010] 2 F.L.R. 1165
Referencia INCADAT
HC/E/UKe 1324
Tribunal
Reino Unido - Inglaterra y Gales
Tribunal de Apelaciones
Estados involucrados
Irlanda
Reino Unido - Inglaterra y Gales
Fallo
12 May 2010
Definitiva
Grave riesgo - art. 13(1)(b) | Objeciones del niño a la restitución - art. 13(2)
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INCADAT comentario
Excepciones a la restitución
Impacto del Convenio en hermanos/hermanastros
Edad y grado de madurez requeridos
SUMARIO
Sumario disponible en
EN
Facts
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
Grounds
Grave Risk - Art. 13(1)(b)
Wilson L.J. indicated that the father's case built around the age of the middle child was misplaced because it did not impugn the objections of the eldest child, and if the latter were to be upheld there was no reason a non return order could not be made on the basis of Article 13(1)(b) as regards the middle child, as well as the youngest child.
Objections of the Child to a Return - Art. 13(2)
The father argued in the first instance that as the second child was two weeks short of her 6th birthday when interviewed, Article 13(2) could not or should not apply to her. The Court accepted that there was strength in this argument and that the objections of such a young child falling within the exception was indeed 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...".
In this he referred to Article 12 of the United Nations Convention on the Rights of the Child of 20 November 1989 as well as Article 11(2) of Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003). He therefore held that in any full appeal the father could not successfully argue that the age of the middle child by itself foreclosed the possibility that she had objections for the purpose of Article 13(2). Wilson L.J. added that he shared the concern that the lowering of the age at which a child's objections might be taken into account might gradually erode the Convention's summary return goal, but a safeguard was to be found in the expectation that in the exercise of discretion the objections of an older child would deserve greater weight than those of a younger child.
The Court rejected the father's argument that the children's objections were invalid since they could contemplate going to Ireland but to an address far away from and unknown to the father. The Court held that this reflected rather their relative maturity in that they could draw a distinction between life in Ireland per se and life in Ireland with the father. The Court further noted that the children had physical reactions when advised that they might be returned notwithstanding their objections.
On the issue of whether the child had the requisite maturity to take their views into account, the Court found that after earlier confusion in its jurisprudence, it was now settled that the threshold was fairly low. Certainly there was no requirement that account should only be taken of objections where they were so solidly based that they would likely be determinative of the subsequent discretionary exercise. Reviewing the trial judge's exercise of discretion, the Court noted that the trial judge had been faced with a difficult task. In this, it noted that the children were indeed very young and whilst their maturity crossed the threshold, their appraisal of the situation lacked sophistication.
In such circumstances the objective of return militated strongly in favour of a return. However, by the date of the trial the family had been settling into life in London for nine months and although he had not acquiesced in their removal, the father had allowed this time to pass instead of swiftly taking proceedings. Sedley L.J. questioned the use of the term 'discretion' in the context of Article 13. He held that the decision required by the Convention was more appropriately described as an exercise of judgment and its components had to be explicitly identified, evaluated and balanced so that the parties, especially the losing party, the public and other courts could understand and appraise the decision.
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.