Sunday, December 14, 2008
Irish court: 6-year old to be heard in Hague Abduction Case
An Irish court has ruled in a Hague Abduction Convention case that a child of just six years of age should be heard by the Court in determining whether to return the child to his habitual residence in another (unnamed) European Union country. N. -v- N. [hearing a child],  IEHC 382.
Ms Justice Finlay Geoghegan held that the issue as to whether or not the Court should give a child an opportunity to be heard is a separate and distinct issue from the appropriate weight, if any, to be given by the Court to the child’s views in determining any substantive issue in the application for the return of the child. The judge also insisted that the views of the child could be significant not only for the purposes of Article 13 of the Convention – which gives the Court a discretion to refuse to order the return of the child “if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views” – but also in applying Article 12.
Article 12 is the provision according to which the Court makes the summary order for return. The Court found that a child’s views “on everyday matters as to the circumstances in which he was living before he came to Ireland, or his wishes as to his future care including what should happen on return” might be taken into account by a Court by seeking appropriate interim undertakings when making the order for return pursuant to Article 12 of the Hague Convention.
The ruling was a consequence on several particular aspects of Ireland’s position with respect to the Hague Convention.
The first is that as an EU member an Irish court in a Hague case is subject to EU Council Regulation (EC) No. 2201/2003 (the “Revised Brussels II Regulation”). Article 11(2) of the Regulation reverses the burden of proof as to hearing a child in a Hague case concerning an alleged abduction from another EU country. It provides that, “When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.”
Second, Article 11(3) of the Brussels Revised Regulation requires that, “the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.” That requirement of great speed makes it far more workable to hear a child and determine the child’s maturity after such a hearing instead of having a psychologist interview the child and prepare a report on the child’s maturity.
Third, the Brussels Regulation “seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union” which provides that “Children shall have the right to such protection and care as is necessary for their wellbeing. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.”
Finally, the Irish court cited English authority for the proposition that Article 12 of the United Nations Convention on the Rights of the Child must be applied in Hague cases. That article provides that:
“1. State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
In Re. D. (Abduction: Rights of Custody)  U.K.H.L. 51, Baroness Hale in the English House of Lords, stated that,
“Although strictly this only applies to cases within the European Union (over half of the applications coming before the High Court), the principle [that a child should be heard] is in my view of universal application and consistent with our international obligations under article 12 of the United Nations Convention on the Rights of the Child. It applies, not only when a ‘defence’ under article 13 has been raised, but also in any case in which the court is being asked to apply article 12 and direct the summary return of the child - in effect in every Hague Convention case. It erects a presumption that the child will be heard unless this appears inappropriate. Hearing the child is, as already stated, not to be confused with giving effect to his views.” It must be stressed that the Irish court repeatedly emphasized that one should not confuse the issue as to the weight to be attached to a young child’s views with the issue as to whether the child should be given an opportunity to be heard. “In general, the weight to be attached to views expressed by a six year old as to the country in which he would like to live will be less than that to be attached to the views of say a fifteen year old for, inter alia, the reasons submitted by counsel for the father.”
This author is most concerned that, notwithstanding the caveat stressed by the Irish and English courts, the trend of allowing increasingly young children to “testify” to the issue of their preferred country of residency may well undermine the Hague Convention. While English or Irish courts may weigh the issues dispassionately, practitioners in this field know that courts in many countries refuse to return children who have been abducted by a local national parent if there is even a plausible reason to do so. Allowing very young children to testify on these issues provides an easy way out for many judges who would prefer not to have to send children back to their habitual residence.