ANALYSIS:THE HAGUE Convention on Child Abduction was drawn up to address an increasing problem in a globalised society where there were custody disputes about children. All too often one parent involved in such a dispute was taking the children away from the country in which they were living and bringing them to another country. This brought them away from the reach of the courts in their country of origin, which may have been in the course of adjudicating on the dispute.
The fundamental premise of the convention is that children should be returned to the country in which they normally reside, so the courts there can deal with any dispute concerning their custody and welfare. In examining an application for the return of children, the court hearing the application will normally not examine the merits of the custody dispute itself.
However, the presumption of return can be overridden in exceptional circumstances: where the children would be exposed to grave physical or psychological harm if they were returned, or otherwise placed in an intolerable situation, and if they express very strong views themselves opposing their return, though these alone cannot be decisive.
This means that a court must first decide where the children normally reside. In cases where they have moved between two countries and the case is being brought in one of them, and where the court decides that the children’s normal residence is in that country, it will rule they should remain and have the dispute ruled upon in that jurisdiction. If the court decides the normal residence is in the state of the applicant, then it will normally order the children should be returned.
This is where other arguments come into play, in particular that they will suffer grave harm if they are returned and it is where the court can hear the child directly or through an examination by a child psychologist. As Mrs Justice Denham observed in her judgment yesterday, the voice of the child has increasingly come to be seen as highly important.
It is not, however, decisive and the courts have returned children in cases where the child vehemently opposed it. The child’s views are weighed according to his or her age and level of maturity and the possibility that the child was coached by one parent, along with objective evidence about any danger the child may face if returned. The court will carefully consider what is in the best interests of the child.
In this case, the children’s objection to being returned was backed up by objective evidence: their father had spent very little time with them, having fled to Nigeria and spent time in jail; he had behaved violently towards their mother and inappropriately towards them so that his access to them was curtailed; he had refused to engage in therapy to address his behaviour.
Here the views of the children and their best interests were found to coincide, and both the High Court and the Supreme Court ruled that they should not be returned.