The father applied, under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”), incorporated into English law by the Child Abduction and Custody Act 1985, for the summary return of two children, aged 11 and 12, to Hungary following their removal from that jurisdiction by their mother. The mother conceded that her removal of the children had been wrongful for the purposes of the Convention and it was acknowledged that Council Regulation (EC) No 2201/2003 (“Brussels IIa”) applied. On the assertion that she had suffered domestic violence at the hands of the father, including a particularly violent attack witnessed by the children, the mother opposed the return relying upon the defences of “harm” and the “children’s objections” under article 13 of the Convention. The judge saw the children, who had expressed a strong desire to meet the judge who was deciding their case. ,and having regard to their diagnosis of autism, their presentation before him and the defences raised by the mother, directed that the matter be adjourned for the preparation of an expert report by a child psychologist to assist in determining whether there was a grave risk that the return of the children to Hungary would expose them to psychological harm or otherwise place them in an intolerable situation, and whether each of the children’s expressed views amounted to an objection within the meaning of article 13 and whether they had attained a degree of maturity such that it was appropriate to take account of their respective views. At the adjourned hearing the judge found: (i) that there was a good prima facie case that the mother was the victim of significant domestic abuse at the hands of the father; (ii) that specifically there was one deeply troubling and traumatic incident in which the mother was assaulted by the father; (iii) that the children had witnessed those incidents of domestic abuse, including the specific incident; (iv) that, by virtue of the particular medical condition from which both children suffered, their objective experience of life in the family home was now overlain by a significant subjective component; and (v) that whatever the precise objective truth was in respect of the children’s experience in their family home up to and including the specified incident, their subjective experience of that situation had left them also with fixed and immutable subjective fears; in particular, it left one of the children with a fear that his father was trying to, and was going to, kill his mother and that this would therefore be one consequence of their return to Hungary.
On the father’s application—
Held, application dismissed. Since established case law provided that a fixed and immutable subjective fear of harm on the part of a parent, independent of the truth or otherwise of the allegations, was capable of grounding a defence under article 13(b) of the Convention, there was no principled reason why the same could not apply when it was the child who held a fixed and immutable subjective fear of harm, independent of the truth or otherwise of the allegations that were made in the proceedings. Moreover, since article 13(b) of the Convention expressly focused on the question of harm to the child, the ability of a fixed and immutable subjective fear on the part of a child, independent of the truth or otherwise of the allegations, was all the more capable of grounding a defence under article 13(b) on the basis that to return the child to the country of his or her habitual residence in the face of such a fixed and immutable subjective fear would result in a grave risk that a return would expose the child to psychological harm or otherwise place the child in an intolerable situation. Although generally where there existed evidence sufficient for the court to draw conclusions as to what was the objective reality of the child it was not necessary for the court to examine the subjective position, in the present case, when considering whether to order a return, the court was faced with the consequences of both the objective reality for the children in the family home and the subjective fears that the children had derived from that situation in the context of the medical condition from which they suffered. On either approach, returning the children to Hungary would involve a grave risk of exposure to psychological harm and would place them in an intolerable situation. Since it was the location of Hungary itself that drove the children’s fear and anxiety, protective measures were not capable of adequately ameliorating the risk with the consequence that article 11(4) of Brussels IIa did not oblige the court to return the children to the jurisdiction of their habitual residence. In all the circumstances, balancing the competing welfare considerations, and having regard to the risk of harm to the children, if returned, and to their clearly and adequately articulated objections to a return, it was right to exercise the court’s discretion not to order their return to Hungary (paras 66–68, 69–72, 73–78, 79–82).
Per curiam. The injunction in the “Guidelines for Judges Meeting Children who are subject to Family Proceedings” against using such meetings as a means of gathering evidence can place judges in some difficulty where it is inevitable that upon meeting a child a judge begins to form an impression of the child, to see how the presentation of the child compares to that contended for by the parties and, as in this case, to hear statements from the child that may be relevant to the issues that the court is tasked with deciding. The meeting with the children in the present case led to their giving emotional and clear statements of their preferences. Where, as here, the judge considers that what he or she has seen in the meeting with the children may have some relevance to the issues to be determined in the proceedings, it would be entirely artificial, and potentially unjust simply to banish those matters from his or her mind without more. Paragraph 6(iv) of the guidelines provides that the parties or their representatives shall have the opportunity to respond to the contents of the meeting, whether by way of oral evidence or submissions. In the present case, the appropriate course was to authorise the joint instruction of an independent expert. It should be stressed, however, that it will only be in rare cases that such expert evidence will be necessary to assist the court when evaluating defences raised under article 13 of the Hague Convention (paras 6, 42–46).
Nicholas Anderson (instructed by Williscroft & Co, Bradford) for the father.
Graham Crosthwaite (instructed by Sills & Betteridge llp, Lincoln) for the mother.