The basic principle of the Hague Convention is that it is generally in the best interests of the child to be returned. Having said that, how to accommodate children’s right to express themselves?
The previous article described the circumstances in which judges in Hungary hear children in child abduction cases, and now Anita Vimlati looks at the weight Hungarian court gives to children’s objections to return.
In Hungary, children who are considered to be capable of forming their own opinion/capacity to judge/ are always given the opportunity to be heard in all return proceedings under the Hague Convention on Child Abduction, and not only in proceedings in which Art. 13 (the objection of the child) is invoked.
This is due to the fact that Hungary has to comply not only with the Hague Convention but also with the provisions of the Brussels II B Regulation, which obliges the court to give the child the opportunity to be heard in the proceedings. This is not an absolute obligation – it is possible not to hear the child if it does not seem appropriate because of the child’s age or level of maturity, and the judge has discretion to decide otherwise against the child’s wishes.
Experience shows that Hungarian judges make every effort to ensure that the responsibility for the decision does not fall on the children. Children are informed at the hearing that the decision will be taken by the court and that they are not asked to choose between their parents. However, there is no feedback to the children afterwards. When the children meet the judge, they certainly need to build up a level of trust during the hearing, but then they will hear about the court’s decision from their parents. They are not told why their views were or were not taken into account.
There are cases where children are strongly opposed to returning to their country of habitual residence and the court orders their return against their wishes. While the child’s wishes are obviously important, they are not the only determining factor in cases of child abduction. For the principle of the best interests of the child to prevail, all the circumstances, including the child’s wishes, must be assessed. The weight to be given to the child’s wishes will depend on a number of factors – including the child’s maturity, experience and age – and will be balanced against the objectives of the Convention.
Adolescent issues
All too often, after a summer break, the separated parent does not take the child back to the country where the child lives with the caregiver. A 14-year-old Hungarian boy lived in Switzerland with his mother and her partner, but when he spent a month in Hungary in the summer, he did not to return to Switzerland. Who knows whether it was his idea or his father’s wish, but in the return proceedings the teenager’s personal interview lasted almost two and a half hours and he said that he preferred to live with his father because he had conflicts with his mother.
The court found that these were typical day-to-day disagreements that are common in the upbringing of an adolescent child, but are a source of difficulty for both parent and child.
The court made an environmental assessment and the report from the school and witnesses confirmed that the child was being cared for properly in Switzerland.
In its decision, the court respected the child’s preference, but stated in its reasoning that the child’s wish could only be assessed in the context of parental responsibility and did not constitute a ground for refusal to return. As the proceedings for a change of custody could proceed without hindrance once the child had returned to Switzerland, Article 13 (the child’s objection defence) could not be upheld.
(Interestingly, the follow-up revealed that although the mother had been willing to agree to a change of placement to accommodate the child’s views, the boy no longer wanted to live with his father after his return to Switzerland. He still lives in Switzerland and is about to finish his studies).
A possible parental alienation
In another case, the mother of a 10-year-old boy left him with the father in Germany and moved to Hungary with her new partner. In the former German custody proceedings, the child was heard on the issue of parental responsibility in the presence of a child welfare officer and expressed the view that he wanted to live with his father, so they all beleived that the matter was settled. Less than a year later, the mother changed her mind and retained the child in Hungary after a summer holiday there.
In the return proceedings the child strongly objected to being returned to his father and gave a mature and strong (but apparently not uninfluenced) opinion as to why he now preferred to live with his mother. The court ordered the child’s return to Germany against his wishes.
In her appeal, the mother argued that the court of first instance had not taken into account the child’s statement that he did not want to return to Germany and had not given sufficient reasons for this.
The court of appeal pointed out that the court of first instance had acted correctly in considering the child’s statements as a whole.
Due weight was given to the child’s earlier statement in the custody proceedings in Germany, made in the presence of the child welfare officer. The child’s statement at that time was in favour of his permanent residence in Germany.
The facts of the case showed that the child was “caught between two fires” (as the mother’s partner – as a witness – stated), i.e. the child experienced a serious conflict of loyalties and wanted to fulfil the expectations of both parents. The court of second instance gave particular weight to the child’s statements that he had “mediated” in the communication between the parties, which had been blocked by the mother, and that he felt responsible for what had happened.
Thus, the court considered that a change of mind of the child in a short period of time could not be the basis of the court’s decision, even if the child had expressed strong reactions against the return. This led to the conclusion that the child’s views on not returning were not without influence.
It was found that there was no risk of harm or detriment to the child as a result of the return. The court decided to order the return after considering all the circumstances, taking into account, but not relying on, the child’s decision.
It is never just a question of how the children would specifically answer the question of whether or not they want to return. The court assesses what the children say, the circumstances and statements of the child that the parents may not attach importance to, when deciding how much weight to give to the child’s views.
The child’s preferences are not clearly determinative in Hague Convention proceedings. They may in some cases have greater weight in parental responsibility proceedings because the fundamental purpose of the Convention is to make a clear distinction between return proceedings and parental responsibility proceedings.
Read more about child abduction.