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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> CB v CB  EWHC 2092 (Fam) (10 April 2013)
Cite as:  EWHC 2092 (Fam)
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THE RESPONDENT appeared in Person.
MISS PENNY LOGAN (solicitor) appeared on behalf of the Guardian.
Crown Copyright ©
MR. JUSTICE PETER JACKSON:
"The Judicial or Administrative Authority may also 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."
There are therefore certain gateway conditions (as they have been called) which must be met if this defence is to be made out. Firstly, the court must consider whether a child in fact objects to returning, distinguishing an objection from a preference or a strong expression of view. Next, the court must consider whether the child is of sufficient age and maturity to make it appropriate to take account of those views.
- The fact that she has always been K's primary carer and that the father is inexperienced in this role.
- Further it is clear that, as the person who has had the most to do with K's upbringing, the mother is entitled to considerable credit for his many good qualities.
- She points to the father's relatively new found domestic arrangements, with a girlfriend, her own young son and a child on the way and the uncertainty that that might bring to K's life.
- She points to the difficulties that she has had in maintaining in contact this year by telephone with K, compared to the ease with which he saw his father over the years as she submits.
- She points to K's somewhat uneven school career and the difficulties that he has had in getting on with his classmates, both in England and Australia, at different times. K's current school situation is somewhat transient in that he is a year behind and in the lowest sets until he finds his level. In contrast, the mother says that she has a new school lined up for K in Australia to which he was successfully admitted before Christmas.
- She points to the losses of friendships and family in Australia. Apart from herself, there is a great uncle there and some good family friends.
- The mother further points out that K had mixed views as to whether he wanted to return to Australia as recently as January. She says that he came down in favour of remaining here because of pressure, not only from his father and his father's family, but also from his maternal grandmother (her mother). She says that, at the moment, K is in a honeymoon period.
All of these factors, the mother says, show that K does not and indeed could not have insight into what is really in his own best interests; that his views should be accordingly given less weight and that a welfare assessment would lead to the conclusion that he should return to Australia, following which, if he remained unhappy, she might return with him to this country. If not, the Australian Court would be the court to make decisions and matters could, as she sees it, be done properly.