G v H (Hague Convention: Wrongful Removal)
[2023] EWHC 2351 (Fam)
Re R (A Child) (Wrongful Retention: Child’s Objections: Discretionary Return)
1 March 2023
[2023] EWHC 560 (Fam)
High Court
A boy didn't want to go back to Portugal after his holiday in England because he was bullied and worried about his dad. The judge said he had to go back because it's important for kids to return to their usual homes after holidays, and even though the boy didn't want to, it's better for him in the long run.
Key Facts
- •13.5-year-old R, a Portuguese national, was wrongfully retained in England by his mother after a summer holiday.
- •The father applied for R's return to Portugal under the 1980 Hague Convention.
- •The mother argued for exceptions under Article 13(b) (grave risk) and Article 13(2) (child's objections).
- •R expressed a strong preference to stay in England due to bullying experiences in Portugal and his father's perceived lack of support regarding his sexuality.
- •A Cafcass officer interviewed R and reported on his views and circumstances.
Legal Principles
The 1980 Hague Convention aims to protect children from wrongful removal/retention and ensure prompt return to their habitual residence.
1980 Hague Convention, Article 1
Child's welfare is a primary consideration, alongside the best interests of children generally, in Convention proceedings.
Re E (Children) [2011] UKSC 27
Article 13(b) exception: Return is not mandated if there's a grave risk of physical or psychological harm or an intolerable situation upon return.
1980 Hague Convention, Article 13(b)
Article 13(2) exception: Return can be refused if the child objects and has sufficient maturity to have their views considered.
1980 Hague Convention, Article 13(2)
In child's objection cases, the court has discretion, considering the child's views, welfare, Convention policy, and all circumstances.
Re M (Children) [2007] UKHL 55; Re M (Republic of Ireland) [2015] EWCA Civ 26
Outcomes
The court ordered R's return to Portugal.
While acknowledging R's objections and the challenges he faced, the court found the Article 13(b) exception (grave risk) not met. The court balanced R's objections (Article 13(2)) against the policy of the Convention favoring prompt return, considering R's idealized view of life in England, educational disruption, lack of social support, and the benefits of maintaining ties with his extended family in Portugal.