FD25P00086 - [2025] EWHC 2190 (Fam)

Fecha: 20-Ago-2025

Child's objections

94.

The leading case on this exception is In re M (Children) (Abduction: Child's Objections) [2015] EWCA Civ 26 [2016] Fam 1. There are two stages, whether the child’s objections are made out, and the discretionary stage. The main principles are as follows:

(i)

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/her views” (para 69).

(ii)

The child’s views must be sufficiently strong as to amount to an objection rather than a mere preference:

“…the child’s views have to amount to objections before they can give rise to an article 13 exception… Anything less than an objection will therefore not do. This idea has sometimes been expressed by contrasting “objections” with “preferences”.” (para 38).

(iii)

The objections must be to returning to the country of habitual residence, as opposed to returning to a particular person/to particular circumstances in that country (although there may sometimes be difficulty in separating out the two) (para 42).

(iv)

The child’s views are not determinative of the application or even presumptively so; they are but one of the factors to be considered at the discretion stage. The court’s discretion at the second stage is at large; there is no requirement of exceptionality, and the court is entitled to take into account the various aspects of Convention policy which gave the court discretion in the first place, and wider consideration of the child’s rights and welfare (para 63).

95.

T is aged 11 and has the degree of maturity commensurate with his age according to the Guardian. I find that he has attained an age and degree of maturity at which it is appropriate to take account of his views.

96.

T has expressed the clear view that he does not wish to go to Zimbabwe, and wishes to stay in England, both because it is better in England, and because his football career is more likely to succeed in England. According to the Guardian, although T wishes to remain in England and does not want to return to Zimbabwe, when asked what it might be like to return to Zimbabwe to live with his father, his response was “I don’t want to go. I would feel sad if I had to go and I don’t know if mum would go. If I had to live with dad, it would be good, but I would be worried about school and not having the chance to become a footballer”. The Guardian asked T if he thinks he would be able to talk to his dad about how he feels about him not wanting to return to Zimbabwe. He replied, ‘yes, he would be disappointed, I think moving to Leicester will be good’.

97.

I find that T’s desire not to return to Zimbabwe is clearly a preference rather than an objection, in keeping with the Guardian’s assessment, and for that reason this defence fails.