FD25P00187 - [2025] EWHC 2629 (Fam)

Fecha: 17-Oct-2025

Child’s Objections

Child’s Objections

22.

The leading case on child’s objections remains the judgment of Black LJ (as she then was) in Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26, [2016] Fam 1.

23.

In evaluating whether the exception under Art 13 based on the child's objections is made out, the court will adopt a two-stage approach. The court will first examine whether, as a matter of fact, the child objects and has attained the age and degree of maturity at which it is appropriate to take account of his or her views. If that threshold is met, the court will then consider whether, in its discretion, to order the return of the child notwithstanding his or her stated objection. Within this two-stage analytical framework, the authorities enjoin the court to have regard to the following principles when applying that framework:

The gateway stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.

ii)

Whether a child objects is a question of fact. The child's views have to amount to an objection before Art 13 will be satisfied. An objection in this context is to be contrasted with a preference or wish.

iii)

The objections of the child are not determinative of the outcome but rather give rise to a discretion.

iv)

Once that discretion arises, the discretion is at large. The child's views are one factor to take into account at the discretion stage.

There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to 'take account' of the child's views, nothing more.

vi)

At the discretion stage there is no exhaustive list of factors to be considered.

vii)

The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available.

viii)

The court must give weight to Convention considerations and at all times bear in mind that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly.

ix)

The court may have to consider the nature and strength of the child's objections, the extent to which they are authentically the child's own or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to the child's welfare, as well as the general Convention.

In applying these tests, the court is enjoined by the Court of Appeal not to adopt an over prescriptive, over intellectualised approach to the 'gateway' stage and not to adopt an over engineered approach to the 'discretion' stage

24.

In considering Re M (Republic of Ireland: Child's Objections) [2015] EWCA Civ 26; [2015] 2 FLR 1074, and Re F (Abduction: Acquiescence: Child's Objections) [2015] EWCA Civ 1022, in P v S (Re C (1980 Hague Convention: Child Objections)) [2024] EWHC 1875 (Fam) Cobb J (as he then was) re-emphasised that a child who has suffered an abduction will very often have developed a wish to remain in the “bubble of respite” that the abducting parent or relative will have created in the country to which the child has been taken. Within this context, the expression of the child’s wishes cannot be said to amount to an objection unless there is a strength, a conviction and a rationality that satisfies the proper interpretation of Art 13.