Hearing the voice of the child
5 February 2015 by Kate Taylor
Hague Convention Proceedings focus on the summary return of children who have been unlawfully removed from a country. However, in a recent Court of Appeal case the emphasis was on on listening to the wishes of the child when deciding whether or not to order their return.
The case of Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal)  concerned three children aged 13, 11 and 6. The father was Irish and the mother was British. They married in 1996 and lived their married life in Southern Ireland where the children were born and raised. By November 2013 the marriage was over but the family remained in the family home until the children were brought to the UK by their mother in March 2014. On the application of their father, the judge needed to decide whether to return the children to the Republic of Ireland. The mother accepted that she had unlawfully removed the children, but resisted their return citing amongst other things, the children’s objections.
The mother alleged that there had been a significant history of domestic violence. The children reported to the CAFCASS officer that they were scared of their father and did not want to go back to him. They also stated that they were settling well in England. The judge took the allegations at face value, as should be done within Hague Convention proceedings. She found that the children were frightened of returning to their father, but found that the mother had failed to make out her grave risk of harm defence particularly in light of the safeguards available in Ireland. She was not satisfied that the children’s objections were objections in Convention terms and therefore made a return order.
The children had an older brother who was 16 at the time of the proceedings. Due to his age he was not subject to the Hague Convention proceedings, but after the event he and the eldest child subject to the order consulted a solicitor and applications were made on their behalf to the Court of Appeal for permission to appeal. Permission to appeal was granted to the 16 year old brother and the mother.
The Court of Appeal found that the judge at first instance was wrong, the children’s objections were objections in Convention terms in light of the CAFCASS officer’s evidence. This was one of those cases where the children were unable to separate their feelings about returning to Ireland from their feelings about their father. Lord Justice Black also found that the children had attained an age and maturity making it appropriate to take their views into account.
When considering whether the Court of Appeal could exercise its discretion, Lord Justice Black stated that the judge at first instance’s consideration was much too narrow and that in light of the material before it, the Court of Appeal could exercise its discretion. Weighing all the circumstances of the case and the relevant factors, the Court of Appeal allowed the appeal and dismissed the fathers application for the return of the children to Ireland.
It was held by Lord Justice Black that it was imperative that in Hague Convention cases consideration should be given at the earliest possible stage as to whether the appropriate parties were before the court. In this instance no consideration was given to whether the children should be joined as parties until after judgment was given. An application for children to be joined as parties to proceedings at the appeal stage would not always be received sympathetically, but consideration should be given at the outset of proceedings. By the time the matter reached the Court of Appeal it was usually far too late to be considering such an application.
This case is an important step forward in Hague Convention proceedings. The aim of the Convention is to make certain that children who have unlawfully been removed from a country are returned expeditiously. Any legal proceedings can then take place in the jurisdiction of the country the children have been returned to.
For more information about child abduction, click here
To view the text of the Hague Convention, click here