The High Court has ruled that a six-year-old child should have an opportunity to be heard in ongoing proceedings over an application for the child’s return to another EU member state. The court said the child’s views must be heard unless that would be inappropriate because of age or maturity, but made clear that hearing the child does not decide what weight those views should carry.
The return application was brought by the father under the Hague Convention. The mother sought an order for the child to be interviewed and assessed, relying on Article 11(2) of EU Regulation 2201/2003. That provision requires a child to have an opportunity to be heard in proceedings under the Convention unless doing so appears inappropriate given the child’s age or maturity.
The parents, who are nationals of the other EU member state, married in 2002 and divorced in March 2008. At the time of the divorce, a court there ordered that the child live with the mother and granted the father access rights. The mother travelled to Ireland with the child in June 2008. The father claims the child was wrongfully removed or retained; the parties dispute whether he consented to or acquiesced in the move. The judge said those disputes were not relevant to the mother’s application.
The child had recently turned six and was attending junior infants in Ireland, as well as a Saturday school for children of the same nationality. The mother’s evidence described the child as able and intelligent. Teachers’ letters referred to strong schoolwork, enthusiasm and progress in English and Irish. The father’s affidavit described the child as a normal six-year-old, not especially mature for his age.
Justice Finlay Geoghegan held that the starting point under Article 11(2) is that a child should be heard. The court’s duty to decide whether the child should be heard is distinct from the later question of what weight, if any, to attach to the child’s views when deciding the return application. The judge also accepted that the process must be consistent with the regulation’s requirement for expedition.
On the evidence, the judge did not find that the child was prima facie incapable of forming views. The court therefore ordered, in substance, that the child be heard. The judge said the order would also allow a professional assessment of the child’s maturity to inform the later consideration of the views. The substantive return application remained undecided. The judge said a revised draft order would be circulated for counsel’s observations.