The High Court refused a mother’s application to have her nearly five-year-old daughter interviewed in proceedings seeking the child’s return to England under the Hague Convention.
In a judgment explaining a decision given on 9 May 2012, Ms Justice Finlay Geoghegan considered whether the child should have an opportunity to be heard under Article 11(2) of Council Regulation (EC) 2201/2003. The judge stressed that the issue was whether to hear the child at this stage, not whether she should be returned to England.
The father sought the child’s return, alleging that the mother had wrongfully brought her to Ireland on or about 4 January 2012. The judgment records that the parents were unmarried, that the child was habitually resident in England in January, and that the father had parental authority and had not consented to her removal. The return application’s substantive issues remained for a separate hearing.
The mother argued that the child was intelligent, doing well at school in Ireland and capable of expressing views. She said the child objected to returning to England. The judge discounted hearsay and comment in the mother’s account, while accepting that the child was intelligent, competent and doing well at school. The court also considered an English High Court order of 31 January 2012, which had found it inappropriate to hear the child when she was four years and seven months old. The Irish judge said the reasons for that English decision were not available and it was not directly relevant to her reasoning.
The judge applied the principle that a child should generally have an opportunity to be heard unless that would be inappropriate because of age or maturity. She assessed the child at about four years and eleven months, with maturity consistent with her age. The judgment explained that the assessment concerned whether she could form views about everyday matters potentially relevant to the return proceedings, not whether she could decide which country she should live in.
The court concluded that, despite the child attending school, she was probably not old enough to form views on relevant everyday matters. The judge also considered it inappropriate, having regard to the child’s rights, to involve her directly in the Hague return case. She refused the application. The judgment did not decide whether the child would be returned; it noted that hearing her might become appropriate in later care or custody proceedings.