THE SON of divorced parents who had refused to return to England to live with his mother following a holiday with his father in Ireland may remain here, the High Court has ruled.
The mother of the boy (13) had brought proceedings under the Hague Convention on child abduction seeking an order requiring his return to England and claiming he would have better schooling and a better life there.
The parents married in 1995 in Britain, separated in 2005 and divorced in 2008. The Irish father returned here with all three of their children – two boys and a girl – with the mother’s agreement. No formal custody or access agreement was put in place but the mother maintained contact with the children.
The girl later went to live with her mother but the boys remained here with the father until 2010, when the younger boy also went to live with his mother. He said he did so because he was promised a better life there but, in July 2011, after a two-week holiday with his father, said he wished to remain here and did not return to England.
A clinical psychologist who interviewed the boy said she was satisfied his views about wanting to stay were his own and genuine. He was well capable of forming and expressing his own views and had done so without pressure from others.
Mr Justice Michael Peart ruled, after balancing this “sufficiently mature” boy’s “genuinely held” objections to return to England against the aims and objectives of the Hague Convention, that this was one of those exceptional cases where a child should not be returned to his country of habitual residence which, in July 2011, was Britain.
While article 12 of the convention required immediate return of a child wrongfully removed, article 13 permitted the court some discretion. In this case, of “particular exceptionality” was the fact the boy had seven years of living with his father and of attending school here with which to rationally compare the 12 months between 2010 and 2011 living with his mother in England, the judge said.
There was some dispute whether the mother made clear to the boy, when he came to live with her in July 2010, that he must do so until the age of 16 so as to “settle” him, he also noted. While he chose to go to England then, he had told his father he did so after indications either by his mother or his sister that his life would be better there and he could return to Ireland if things did not work out.
There was limited evidence his father was short of money as he was attending college and in such circumstances, the promise of a better life in England may have had “some superficial attraction”.
The fact the boy’s decision in July 2010 to live with his mother changed his country of habitual residence overnight, given the “settled purpose” of that move, should not deprive him of the opportunity of changing his mind as long as he was not doing so on “a whim”.
It was not contrary to the purposes or terms of the Hague Convention to allow the boy to change his mind before it was “too late”.
It was “increasingly the case” a child of sufficient maturity would be heard on such applications as this; this would be done sometimes via interviews with experts, such as the psychologist in this case.
Mr Justice Peart also stressed there was no evidence the return of the boy to his mother would expose him to psychological harm. Just because a child expressed a wish not to be returned, the court did not have to accede to that wish, he added.
It was clear from the psychologist’s report that this boy, while immature in the sense of not being used to making serious decisions for himself, had sufficient maturity to form and express his own views and to have them seriously considered, he said.
By Mary Carolan – Irish Times | Fri, Jan 13, 2012 | Link to Irish Times Article