FD24P00616 - [2025] EWHC 985 (Fam)

Article 13(b) of the Convention provides:

“The judicial or administrative authority may also refuse to order the return of the child if it finds 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 its views”

It is common ground that the question as to whether the child objects is a question of fact which I have to reach based on the evidence before me and that the discretion only arises if I am satisfied that the evidence shows that a child objects. I am mindful that the “objection” voiced by the child must be to returning to Spain and not returning to living in a particular part of Spain or to resuming living with the Father. Further, an objection is something stronger than a preference. It must be a settled state of mind where a child of sufficient age and maturity to know their own mind develops and communicates a strong view that they do not want to return to live in a country in which they previously lived.

In this case there are two children, EF and GH, and the Mother’s case is both object to return. I raised with counsel what the position would be if I found that one of the children had raised the defence but where objections were not established in respect of the other child because, for example, the child’s age and maturity did not allow me to reach a conclusion on the facts which had effects for the purposes of the Convention. Both counsel accepted that, on the facts of the present case where the Mother was caring for both children, the defence would be established and the discretion came into play if either child held objections which were sufficient for the gateway stage to be crossed. However, Ms Georges rightly submitted that the fact that only one child was shown to object would be a factor within the discretion exercise.

The evidence of EF’s objections comes from a number of sources. The Mother’s case is that she was unaware of the children’s concerns about how they say they were treated when they went to stay with the Father until they children came to England and, at that stage, the children started to say that they did not want to return to Spain to see the Father. She says that gradually the children disclosed what had happened during their periods spent with the Father, but that the information came from the children and she denies putting these ideas into her children’s minds. I take full account of the fact that the Father completely denies that he was ever responsible for any abuse or ill-treatment of the children and I make no findings about the underlying primary facts because, for the exercise I have to undertake, it does not appear to me to necessary to make any findings on whether the allegations made by the children are true or not. I need to be focused on the thoughts and views of each of the children in order to determine whether either or both of them genuinely object to returning to Spain.

The evidence about EF’s views on a potential return to Spain comes from a number of different sources. The Mother explained that, having made these disclosures, she arranged for the children to have counselling. The counselling report said:

“The client’s presenting issues include difficulties in processing past experiences while living in Spain and challenges in understanding and managing her emotions, particularly feelings of fear and a strong need to express what she has been through. The sessions offer a safe, creative, and non-pressurised environment that allows her to explore these experiences and emotions at her own pace. The client engages positively with the sessions, and feedback from her mother has been overwhelmingly encouraging”

The report noted that EF “expressed fear at the thought of being taken away and harmed by her father” and that “She appears to have found this sense of safety in her current living situation in England, which is vital for her continued wellbeing and recovery”. That report is support for the submission that the EF genuinely feels these concerns, irrespective as to whether the facts on which this feeling is based are true or not.

The Mother arranged for EF to be seen by a Consultant Clinical Psychologist who produced a report dated 9 January 2025 after having undertaken a psychological assessment of the children in a session where the Mother was not present. The Psychologist records that EF told her:

“I am scared to go back to Spain …. I really don’t want to go back to Spain … He wants us to go back to Spain, I think he’s really mad in my worry brain and in my heart I’m scared. I don’t want to go. I have nightmares …”

The Psychologist concluded that:

“In conclusion it is my clinical opinion but both EF and GH are exhibiting clinical symptoms of distress in relation to what they allege happened to them whilst living in Spain and that they also live in fear that they will have to return to Spain to spend time with their father and his family. It is also my technical opinion that sending EF and GH back to Spain whilst they are exhibiting these symptoms would put them in an intolerable situation”

Ms Georges submitted that I should be cautious about placing any reliance whatsoever on material produced by the counsellor or the clinical psychologist because they were both working on the basis of facts as presented to them by the Mother. I do not accept that submission. It seems to me that both set out in writing what they heard the children say to them and, in the case of the Psychologist, she formed a professional opinion which was within the scope of her expertise about EF’s psychological state. Whilst I am not bound to accept this evidence if it were to be contradicted by other evidence, I consider that I am entitled to take it into account in showing EF’s genuine state of mind in relation to a potential return to Spain.

The children were seen by a CAFCASS officer, Ms Allison Baker, who produced a detailed report dated 11 December 2024. EF reported to Ms Baker that she would be “terrified” if she had to go back to Spain and that this fear was related to the prospect of seeing her Father again. She was asked a series of questions about her recollections of her time in Spain and had some good memories as well as bad ones. Ms Baker reported one exchange as follows:

“When asked if she knew what her father wants EF replied “to kill us”. I suggested that this was not what he wanted, but rather to see her again and she said this would make her “very happy””

Ms Georges suggested that this showed that EF was wholly inconsistent in her approach and thus I could not rely on her stated views about a return to Spain. In contrast, Ms Compton for the Mother submitted that this exchange should be read as Ms Baker posing a potential set of facts for EF, namely asking her how she would feel if she was wrong in her concerns about her Father’s intentions, and asking her how she would feel if in fact she could be sure that her Father did want to see her. Thus, Ms Compton suggested, EF was being asked how she would respond to what was, in her mind, a counterfactual situation. It seems to me that Ms Compton is probably right that this is the right way to read this exchange. I accept that EF would want to see her Father if she could be confident that her previous experiences of abuse at the hands of her Father and members of his family would not be repeated. However, as Ms Compton rightly submitted, Ms Baker could not provide that type of reassurance and that suggestion does not displace her underlying fear of returning to Spain. Ms Baker’s report then said:

“Using a scaling exercise EF identified that she would be very unhappy were she to return to Spain (selecting a score of one) and remarked “because I don’t want to go back and I don’t want to be killed”; that she would be very happy to stay in England (selecting five); that she would be very unhappy to return to her school in Spain; and that she was very happy at her school here”

The Father’s case, as now developed, is that (a) the children never suffered any abuse at his hands and he never saw any abuse by members of his family, (b) that the children had been coached by the Mother to make allegations of abuse as part of her overall case to try to ensure that they could stay in England, and (c) that the children did not really believe that they had been subject to any abuse and were merely repeating matters that the Mother had coached them to say. There is nothing in the reports by the counsellor, the psychologist or in Ms Baker’s report to support the case that the children were not expressing their real views. In my experience, CAFCASS officers dealing with High Court cases are hugely experienced in dealing with international abduction cases and it is far from uncommon for allegations to made that disclosures about inappropriate behaviour by a remaining parent arise from coaching by the abducting parent and CAFCASS officers are astute to discern whether views reported to them by a child are the child’s own views or whether the child has been coached by the abducting parent. Thus, I approach this report on the basis that, if Ms Baker had had any concerns that EF was not reporting her own views but was merely repeating things that her mother had persuaded her to say but which EF did not herself believe, Ms Baker would have included reference to those concerns in her report. Ms Baker has not included any such reservations and thus I have no basis to conclude otherwise than that Ms Baker is setting out views that she believed EF genuinely held.

It would have been open to Ms Georges to ask for Ms Baker (who was present in court on the first day of the hearing) to give live evidence so that she could be asked whether she had any concerns that the matters that EF was reporting to her were not her genuine views. Ms Georges accepted that she had made the decision not to ask for Ms Baker to give live evidence and not to ask her these questions. She sought to rely on what she claimed were inconsistencies in EF’s views as set out in the report to show that EF did not genuinely hold the concerns that she had reported. It is a matter for Ms Georges how she chose to run her case but, in the absence of any suggestion in Ms Baker’s report that EF did not genuinely hold the views ascribed to her, I accept that Ms Baker’s evidence indicates EF’s genuine views. I repeat for the purposes of any future welfare hearings that the fact that EF held these views is not conclusive evidence that they were based on an experience of abuse. I make no findings as to whether either child had in fact experienced any abuse.

Nonetheless, looking at the material as a whole, I accept that the gateway has been crossed and that EF objects to a return to Spain. I accept that she is genuinely terrified about a return to Spain because she would be worried that this would result in her having to spend time with her Father, and I accept that any proposed return to Spain would cause her significant distress.

Given my finding in respect of EF and given the concession made by Ms Georges, I do not need to consider separately whether GH objects to a return to Spain. The material suggests that his level of objection is lower than his sister’s and he may well not have sufficient age and maturity to have formed relevant objections for the purposes of the Convention. The evidence clearly supports a case that he would prefer not to return to Spain, but I do not need to make any finding as to whether that preference amounts to a relevant objection.