How loud is the voice of a child who has been wrongfully removed from his/her usual place of residence and taken overseas by one of his/her parents in terms of the Hague Convention?

Usually parents whose children live with them and are under 16 years of age do not seek the opinion of their children even when making decisions that pertain to them. So when one parent with whom they live packs their bags and those of the child and tells them “we are going to go and live with granny in England” the child is very unlikely to protest.

However, in cases where a child has been wrongfully removed from his/her home by a parent and taken overseas without the permission of the other parent, the courts will hear the opinions of the child who has been wrongfully removed “unless it appears inappropriate”.[1]

For a child’s opinion to have weight in the eyes of the Judge children need to be of a sufficient age in terms of The Hague Convention[2] as well as possessing degree of maturity.

What is sufficient age? “Sufficient age” has not beea defined in the Hague Convention however the older the child the more weight which can be given to his/her opinion. In the

In an English case of Re D (A Child)[3] a Judge stated that “the views of the child should have been canvassed after he had attained the age of seven as by then he ‘had reached an age where it could no longer be taken for granted that it was inappropriate for him to be given the opportunity to be heard’.” The Court listens to any opinions or objections the child may have to be returned to their home, however it is finally the Judge’s decision whether to use such opinions/objections in coming to a decision.[4]

In the United Kingdom there are three ways which a child can express their views to a court. These are:

• Interview with a Cafcass officer
• Speaking to the Judge
• Speaking through a legal representative to put their views forward.

In most legal proceedings an interview between a Cafcass officer and the child is sufficient.[5]

The best interests of the child are always of the utmost importance in any court proceedings where children are involved.

Who are Cafcass Officers?

CAFCASS stands for Children and Family Court Advisory and Support Service. It is an independent body from the courts and other social services. They act as advisors to the Family Courts and put forward the wishes of the children to the courts and ensure that the best interests of children are upheld in all matters. They also provide support and advice to children and their families in adoption and divorce matters.

Dangers of allowing children’s opinions to be heard

Although the wishes of the children are taken into account courts have also warned against children becoming too involved in case. In the case of Re LC (Reunite: International Child Abduction Centre Intervening)[6] the Judge highlighted the fact that children entering into the “arena” of a court case could cause them to adopt a directly confrontational attitude toward the parent applying for the return of the child. It was further mentioned that this could disrupt family relationships which could also the resolution of the main issue being whether the child should be returned to their usual place of residence.

Certain circumstances where a child’s objections will not be thought to be sufficient by the Judge are the following:

• “Where it is apparent that the child is merely parroting the views of a parent and does not personally object at all;
• Where the objection is not an objection to the right thing;
• Where the asserted objection is not an objection at all, but rather a wish or preference.” [7]

What happens when siblings have been abducted and one wishes to return but the other does not?

In the case where siblings are involved there are many conflicting opinions as to what to do. It is not thought to be in the best interests of the children to split them up. In all cases it is thought that it will be intolerable for the non- objecting child to be split from the objecting child.[8]

In the case of Zaffino v Zaffino (Abduction: Child’s Views)[9] it was stated that “the exercise of discretion cannot… properly be made by treating each child in isolation. The child’s place within the family, and the consequences of the exercise of discretion on that child, must be considered.”

In another case of In Re S (A Child) (Habitual Residence and Child’s Objections)[10] it was held that “ the court had been entitled to conclude that the separation of a 12 year old girl from her brother, aged 10, was mitigated by the fact that they were at an age where they would increasingly lead their own lives and that they would in future be able to communicate with each other via Skype.”

It becomes apparent from the above that yet again the court has the discretion to decide whether or not to split up siblings. Although they try to avoid this, when children are older it may be more permissible to split them up as it is very easy for children to communicate with one another as technology has developed so drastically.

Conclusion

From the above it is obvious that the courts have a very wide discretion to take into account or not to take into account a child’s objections. Courts will mainly focus on the nature and strength of the objections, whether the child’s opinion seems to have been influenced by a parent or third party, and whether what the child is requesting or suggesting is indeed in their best interests.

The Court needs to focus on whether the child’s objection is indeed an objection to be returned to their country of habitual residence and not just a general objection. A child’s capacity to judge what is in their medium and long- term interests is relevant to the exercise of the courts discretion.[11] If the only reason for a child’s objections is because it wants to remain with the abducting parent, who is also asserting that he or she is unwilling to return, the Judge is likely to overlook such as objection as the child is simply echoing the views of the abducting parent.[12]

It would appear from the cases that the older and more mature the child is the more weight their opinions carry. All objections have to be valid and have to be with regard to the return to the child’s place of habitual residence.

[1] Re KP (Abduction: Child’s Objection) [2014] EWCA Civ 554, [2014] 2 FLR 660.

[2] Re D (A Child) [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[3] [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[4] JPC v SLW and SMW [2007] EWHC 1349 9Fam), [2007] 2 FLR 900, De L v H [2009] EWHC 3074 9Fam), [2010] 1 FLR 1229.

[5] Re D (A Child) [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[6] [2014] UKSC 1, [2014] 2 WLR 124, [2014] 1 FLR 1486.

[7] Re M Republic of Ireland) (Child’s objections) (Joinder of Children as Parties to Appeal)[2015]EWCA Civ 26.

[8] The Ontario Court v M and M [1997] 1 FLR 475, Re T (Abduction: child’s Objections to Return) [2000] 2 FLR 192.

[9] [2005] EWCA Civ 1012, [2006] 1 FLR 410.

[10] [2015] EWCA Civ 2, [2015] All ER 9D) 56 (Jan).

[11] In Re M and Another (Children) (Abduction; Rights of Custody [2007] UKHL 55, [2008] AC 1288, [2008] 1 FLR 251.

[12] SvS (Child Abduction) (Child’s views) [1993] Fam 242, [1992] 2 FLR 492.