The Supreme Court refused an application by a mother to have her five-year-old daughter heard in an appeal concerning the child’s return to Latvia. It affirmed the High Court’s decision that it was inappropriate to hear the child, based on the evidence, including her age.
The appeal arose under the Child Abduction and Enforcement of Custody Orders Act 1991, the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Council Regulation 2201/2003. The child is identified in the judgment as S.B.; the parents are anonymised as A.Bu. and J.Be.
In March 2010, the High Court held that the child’s removal from Latvia in March 2009 was wrongful under the Hague Convention. It ordered her return forthwith to the custody of her father, A.Bu., in the jurisdiction of the Latvian courts. Her mother, J.Be., appealed that ruling.
Before the Supreme Court appeal began, the mother asked the Court to hear a statement from her daughter. She had previously applied to the High Court for the child to be interviewed. In February 2010, the High Court ruled under Article 11(2) of Regulation 2201/2003 that it was inappropriate for the child to be interviewed. That decision was not formally appealed, but the Supreme Court considered whether it should hear the child and declined the mother’s request.
Article 11(2) provides that a child must be given an opportunity to be heard in proceedings under Articles 12 and 13 of the Hague Convention, unless that would be inappropriate having regard to the child’s age or maturity. The Supreme Court considered an earlier High Court judgment, N. v. N. [2008] IEHC 382, which said the starting point is that a child should be heard, subject to that exception. The earlier judgment treated whether a child should be heard as separate from the question of what weight to give the child’s views on the substantive return application.
The earlier decision also said it was prima facie inappropriate to hear a child under six, while stressing that this was not an inflexible rule and depended on the circumstances. In this case, the Supreme Court said the High Court had found, on the evidence and having regard to the child’s age and maturity, that it was inappropriate to hear her. The Supreme Court would not interfere with that decision and affirmed it. The judgment addressed whether the child should be heard; it did not determine the mother’s appeal against the return order.