• Rajan Thandi

Boy’s wishes not enough to prevent him being returned to father

Boy’s wishes not enough to prevent him being returned to father

The wishes of a 12-year-old boy were not enough to prevent him from being returned to his father, especially as it was likely that he had been unduly influenced by his mother.

That was the decision of the Court of Appeal in a case involving a boy who was born in England and had lived in Italy with his English mother and Italian father.

In 2019, the mother decided she would remain in England with him. The father applied for the boy's return under the Hague Convention on the Civil Aspects of International Abduction 1980. The mother contended that the father did not have rights of custody, so the Convention did not apply.

She further stated that the boy would be at grave risk of harm and placed in an intolerable situation if he were forced to return to his father.

The boy was interviewed by a Family Court adviser and did not wish to give a preference as to where he lived. He expressed his unease at being involved in the decision making as he did not feel strongly about either option.

The judge found that the father had rights of custody and his application for summary return was granted. The mother successfully appealed the order on the basis that there had been a fundamental change of circumstances as the boy had since stated that he wished to remain in the UK.

The father submitted that the mother had influenced the boy between the hearings.

The Court of Appeal found in favour of the father. It held that the evidence did not cross the high threshold of a fundamental change of circumstances for setting aside a return order.

The Hague Convention created a summary jurisdiction intended to ensure that applications were determined expeditiously.

The boy's views were not determinative but were part of the exercise of the court's discretion bearing in mind the extent to which they were authentically his own and not merely reflective of the influence of the abducting parent.

Even taken at their highest, the boy's views could not be construed as expressing an enthusiastic or unambiguous wish to stay in the UK and it was not a case where his long-held views had been misunderstood.

His views should have been assessed in the context of the considerable emotional pressure he was under since the return order had been made. The preponderance of evidence pointed to exercising the court's discretion in favour of return.

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 02080040065, by email at hello@southgate.co.uk or using the form below.

Case Citations: [2021] EWCA Civ 194 / RE A (A BOY) (1980 HAGUE CONVENTION: SET ASIDE) (2021) CA (Civ Div) (Moylan LJ, Asplin LJ, Hayden J)

The contents of this article are general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.

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