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Re S (Child Abduction: Joinder of Sibling: Child’s objections) [2016] EWHC 1227 (Fam)

Date posted: 30 November 2016

The case concerned 2 children who had a French Father and an English mother. They married in England but all moved to France when the youngest child was 4.  The marriage broke down and the mother moved with the two children aged 17 and 13 to England, without the father’s consent.

 

Father issued proceedings under the Hague Convention and Brussels IIA for prompt return of the youngest child, S. The older child, R, was 17 and outside the scope of the Hague Convention and she was studying in the UK and wanted to remain here.  R applied to be joined as a Respondent.

 

Mother accepted she was wrong to remove the youngest child, S. However she raised exceptions to the return to France under Article 13(b) of the Hague Convention, and cited a grave risk of psychological harm to S is she was returned to France, as S wanted to stay in England.

 

Held: R was joined as a party and S was ordered to return to France.

 

  • To succeed in achieving party status R had to show she had sufficient interest in the welfare of the subject child, and secondly it was in her interests to be joined as a party. If those two tests were met, the court could exercise its discretion.  It would be rare to not meet the sufficient interest test as a full sibling.   In this case the court found the sibling did have sufficient interest and that she deserved an independent voice and had an opinion which was incapable of being voiced by the adult parties.  She had a litigation friend, which was her solicitor.
  • The threshold for providing an exception under Art. 13(b) is high.  If S was returned to France she would still see her older sister during holidays and their separation may be short, depending on France’s determination of the case.  The father had offered help financially, so there were no concerns regarding the mother having to return to live in France.

 

The court was satisfied that S did object to returning, and had maturity such that it should be taken on board. The court therefore exercised discretion.  It considered the separation of siblings, how she’d been integrated into life in France before removal, and all relevant factors.  It reached the conclusion that she should return to France, and that the court there should determine where her long-term future should be.

 

This case is important therefore for two points, joinder of a sibling and exceptions to the prompt return required under the Hague Convention.

 

The court is used to considering joinder of a subject child under Hague Convention cases, but in this case it was a non-subject sibling.

 

This Judgement shows that even if you can establish a ground to defend a prompt return under the Hague Convention, it merely opens up the exercise of discretion, which, as in this case, leads to the child returning anyway.

 

Case note by

Patricia Beckett

Wilson Solicitors LLP

If you need legal advice on any of the issues raised in this case note please contact Mavis on 0208 885 7986 who can provide further information, or arrange a mutually convenient consultation.