The Power of the Powerless: Tension between Child Objection and judge’s discretion under Art13(2) of the

Hague Child Abduction Convention 1,477 words 300298495

I Overview
This essay will attempt to discuss the tension between the child’s rights to stay and the
obligation of contracting state under Hague Child Abduction Convention (“the Convention”).
Then, the author will propose recommendation to ameliorate this tension. This essay,
however, did not agree that child objection defence enables child abductor to get away from
their wrongdoing, for:1
By definition, one does not get to Art 13 unless the abductor has acted in
wrongful breach of the other party’s rights of custody. Further moral
condemnation is both unnecessary and superfluous…..They will always have
been legally wrong.

II Introduction
The objective of the Convention is to ensure prompt return of the wrongfully retained
children in any contracting States.2 It follows that that child’s view will be relevant when the
Court is assessing the application for their return to their habitual state.

Article 13(2) in the Convention states that it is possible for the judicial authority of the
requested state to prevent return of the wrongfully retained child. 3 This is subject to two
qualification: Firstly, the child needs to object to being retuned. Secondly, the child must have
attained an age and maturity that is appropriate for his or her view to be considered. 4 S 106(1)
(d) of the Care of Children Act 2004 (thereafter “the Act”) codified this part of the
convention. While “substantial weight” 5 will be given to child’s view, the court can exercise
its residual discretion to disregard it.6 This is because the defence of “child objection” does
not give rise to the presumption against return.7

In other words, there is a tension between the child’s right to participate and the policy of
mandatory return. This was seldom explored by the judges. 8 Moreover, the Act only require
the Court to give weight to child’s view instead of taking them into account. 9 Consequently,
the Court can exercise their discretion to return the child to their habitual states despite their
objection.

1 Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51 at [56].

2 Hague Convention on the Civil Aspects of International Child Abduction 1343 UNTS 89 (signed 25 Oct
1980), art 1(a).
3 Hague Convention, Art 13.
4 Art 13.
5 S v S [1999] 3 NZLR 513 at [30].
6 W v N [Child Abduction] [2006] NZFLR 793 at [46].
7 White v Northumberland [2006] NZFLR 1105 at [44].
8 Rhona Schuz The Hague Child Abduction Convention (1st ed, Hart Publishing, Oxford, 2013) at 318.
9 S 106(1)(d); See also Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716.
The Power of the Powerless: Tension between Child Objection and judge’s discretion under Art13(2) of the
Hague Child Abduction Convention 1,477 words 300298495

III Legal Test

The Court has the power to order return of the child or refuse to do so in virtue of the
permissive language contained in s 106 of the Act. 10 In W v N [Child Abduction], Chisholm J
stated that apart from the above stated two qualification, s 106(1)(d) has another two
elements, namely the judge would assign weight to the child’s view, and determine how
would the Court’s residual discretionary power be exercised.11

The Court need to determine the reason of the child’s objection. His or her objection will be
less effective if one merely prefer to remain at the destination country, instead of clearly
objecting to return to their habitual states.12

The Court also need to consider the strength and validity of their objection.13 If their view had
been unduly influenced by their parents’ opinion, order of return should not be prevented.14

IV Analysis and Commentary

A Non-corroboration between Judge’s view and Child’s view

The Convention aims to promptly return the abducted child. 15 Against this cardinal rule, the
court can give weight to child’s objection and exercise their residual discretion to prevent
return.16 Nevertheless, child’s intention or reason to object might be difficult to be
determined17 notwithstanding the statutory mandate requiring the judge to “give weight” to
them.18 Multiple tools such as judicial interview accompanied by psychological report or
legal representation may assist the court to ascertain their objection.19

However, the judge can act against the wish of the child if they do not agree with child’s view
by ruling them lack of maturity to form independent view. 20 Judge Boshier in Damiano v
Damiano ruled to return the 11 year old female child despite her objection. 21 He opined that
the fear of her father can be overcame by placing “safeguards” on the return to Canada, such

10 Secretary for Justice v HJ [2007] NZFLR 195 at [7].

11 Above n 6.
12 S v S (Child Abduction) [1992] 2 FLR 31.
13 Re S (a minor)(abduction) [1993] 2 All ER 683, at 691.
14 B v C [2002] NZFLR 825 at [55].
15 Above n 7, at [53].
16 Robert Ludbrook and Lex de Jong Care of Children in New Zealand: Analysis and Expert Commentary
(Thomson Brookers, Wellington, 2005) at 343.
17 William P Statsky Family Law: The Essentials (2md ed, Delmar Learning, New York, 2004) at 100.
18 Care of Children Act 2004, s 106(1)(d).
19 Jrw and Jew (Both Minors) By Their Guardian Ad Litem V Ew (High Court, Dunedin CIV 2006-412-720, 16
October 2006) at [47].
20 Family Law Service (online looseleaf ed, LexisNexis) at [6.151].
21 Damiano v Damiano [1993] NZFLR 548.
The Power of the Powerless: Tension between Child Objection and judge’s discretion under Art13(2) of the
Hague Child Abduction Convention 1,477 words 300298495

as supervised access. Also. Guardianship Act 1968 incorporate strong presumption for the
return of child, which should not be overridden unless compelling reasons to the contrary
exist.22 In this case, Judge Boshier ruled that the little girl’s objection is not sufficiently
persuasive.23 This case illustrates how the judge’s opinion could override child wishes, albeit
the law was correctly applied.

B Independence of a child’s view

Judge will weigh the child’s view against Convention policy considerations. 24 He or she
would commit an error of law if they failed to consider the child’s objection that is
reasonable, cogent and rational.25 Weight of child’s objection is directly proportional to their
age: the older the child, greater weight should be placed to their objection. 26 Baroness Hale
also stated that child’s view are not determinative.27 Discretion of the court should play a part
in deciding the prospect of whether the defence is made out.

The author applaud the greater judicial willingness to ensure that children’s view are explored
adequately, and properly represented.28 However, the author disagree with the Court’s
approach to disregard child’s view altogether if they had been influenced by parents or in
Caldwell’s words, “the product of blind parental indoctrination”.29 This is because everyone is
entitled with their own opinion. The child is still a person regardless his or her opinion, which
might be similar with the child abductor. In other words, they are capable of forming
independent views. The child should not be used by the Court as an instrument to punish the
wrongdoing of the child abductor in the name of honouring the Convention policy
consideration.30

An interesting example is a Greek case. 31 The young daughter had explicitly articulated that
she did not desire to be returned to Sweden to live with her mum, whom she feared of.
Relying on the socio-psychiatric report, the judge uphold the daughter’s claim while dismiss
the mother’s argument that her daughter’s view had been influenced by her dad.

The daughter in this case is found to be able to articulate cogent and reasonable view about
her grounds of objection, which is in one sense, similar to her father’s wish that she would

22 Above n 22, at 551.

23 At 549.
24 Coates v Bowden (2007) FRNZ 210, at [74] – [76].
25 Above n 26.
26 Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55 [2008] 1 AC 1288 at [46].
27 Above n 28.
28 Jane Fortin Children’s Rights and the Developing Law (3rd edition, Cambridge University Press, Cambridge,
2009) at 262-263.
29 John Caldwell “The Hague Convention and the “Child Objection” defence” (2008) 6 NZFLJ 84 at 86.
30 Above n 28, at [54].
31 Court of First Instance of Agrinio (Μονομελές Πρωτοδικείο Αγρινίου), decision 340, 31 March 2009.
The Power of the Powerless: Tension between Child Objection and judge’s discretion under Art13(2) of the
Hague Child Abduction Convention 1,477 words 300298495

stay. It also shows that the weight given to the child’s objection is essentially a case-by-case
basis. The court, once again, can choose to ignore the child’s objection and order for return.
This tension should not be overlooked lightly.

V Recommendation
The author recommend that a list of non-exhaustive factors be included in s 106(1)(d), so that
the judges can access to an expedient guideline while assessing the facts that can be vastly
different between each other. It serves to promote greater consistencies in applying s 106(1)
(d).

To resolve the tension altogether, the Parliament could either repeal the term “give weight” in
s 106(1)(d) or to clarify which should prevail between Art 12 of United Nations Convention
on the Rights of the Child and Hague Convention and the Convention. 32 There will be clear
guideline for the judges to follow.

VI Conclusion
Although this is largely a settled area of law, the author think it necessary to re-examine
various “forgotten” tensions between the child’s right to stay and the Convention policy
objective. Amendment to s 106(1)(d) is crucial to clarify which should prevail over the other.

32 Above n 15, at 89.

The Power of the Powerless: Tension between Child Objection and judge’s discretion under Art13(2) of the
Hague Child Abduction Convention 1,477 words 300298495

Bibliography

Cases
Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51

S v S [1999] 3 NZLR 513

Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716

W v N [Child Abduction] [2006] NZFLR 793

White v Northumberland [2006] NZFLR 1105

Secretary for Justice v HJ [2007] NZFLR 195

S v S (Child Abduction) [1992] 2 FLR 31

Re S (a minor)(abduction) [1993] 2 All ER 683

B v C [2002] NZFLR 825

Jrw and Jew (Both Minors) By Their Guardian Ad Litem V Ew (High Court, Dunedin CIV
2006-412-720, 16 October 2006)

Damiano v Damiano [1993] NZFLR 548

Coates v Bowden (2007) FRNZ 210

Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55 [2008] 1 AC 1288

Court of First Instance of Agrinio (Μονομελές Πρωτοδικείο Αγρινίου), decision 340, 31

March 2009

Legislation
Care of Children Act 2004, s 106(1)(d)

Texts
Rhona Schuz The Hague Child Abduction Convention (1st ed, Hart Publishing, Oxford, 2013)
The Power of the Powerless: Tension between Child Objection and judge’s discretion under Art13(2) of the
Hague Child Abduction Convention 1,477 words 300298495

Robert Ludbrook and Lex de Jong Care of Children in New Zealand: Analysis and Expert
Commentary (Thomson Brookers, Wellington, 2005)

William P Statsky Family Law: The Essentials (2md ed, Delmar Learning, New York, 2004)

Jane Fortin Children’s Rights and the Developing Law (3rd edition, Cambridge University
Press, Cambridge, 2009)

William P Statsky Family Law: The Essentials (2md ed, Delmar Learning, New York, 2004)

Family Law Service (online looseleaf ed, LexisNexis)

Journal Article
John Caldwell “The Hague Convention and the “Child Objection” defence” (2008) 6 NZFLJ
84

International Material
Hague Convention on the Civil Aspects of International Child Abduction 1343 UNTS 89
(signed 25 Oct 1980)

United Nations Convention on the Rights of the Child and Hague Convention