How are a child’s views taken into account if parents cannot agree in which country the child should live?

A recently reported international child law case addresses this question.

The views of a child are always a central consideration when deciding a child’s future living arrangements. Typically, the older the child, the greater weight a court will give to that child’s wishes and feelings.

In Q v V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490), the children were aged 17 and 12. The family were Polish and the children had always lived in Poland. Court proceedings had been ongoing in Poland since 2014. The mother had repeatedly alleged the father could not care adequately for the children. The Polish court disagreed and found that the children should live mainly with their father, which they had done for a number of years.

The mother was never able to accept the Polish court’s decision. Consequently, the children had been caught-up in ongoing conflict and court proceedings. In 2018, the mother took the children to live with her in Poland (in breach of the Polish court’s order) and then brought them to live in England with her partner and the children’s half sibling.

The father applied to the English court asking for the children to be returned to Poland with him. Both England and Poland are signatories of the International Convention on the Civil Aspects of Child Abduction (known as the Hague Convention) and commit to ensuring that any decisions are made by the courts in the child’s home country. Children who have been moved without the prior consent of the other parent or the court must usually be returned to their home country for their home court to make any decisions unless there is a real risk of harm or the children are justifiably objecting to the move.

In this case there was not a grave risk of and, although the children were objecting to going back to Poland, the judge felt they were being unreasonably influenced by their mother. The views of children who have been extensively exposed to parental conflict and ongoing litigation for a number of years therefore may carry less weight than the views of those in less conflicted circumstances.

Both children were returned in this case. It is very unusual for the court to make a return order in respect of a 17-year-old who does not wish to return. However, in this case it was appropriate due to the level of conflict both children had experienced.

Kris Arpon