Summary
The proceedings were in respect of a child, R, who was born in February 1996.
The mother and the father met in November 1993, and they got married about a year later - in December 1994.
The mother was Portuguese; and the father was English.
There had been a number of Hague Convention proceedings between the parties.
The mother enjoyed custody rights, and made a request for the child’s return to Portugal.
She alleged that the child was wrongfully retained by his father.
The child, who was aged 13 and a half, expressed his objection to return to Spain.
The father alleged that R created the impression that his travel documents were destroyed. Subsequently, the father found R’s passport, but did not inform the mother.
The English High Court declined to make an order for R’s return to Portugal. In this context, Sir Mark Potter P held:
“74 Despite those matters, in the face of R's rationally advanced objections and strong feelings which appear to me soundly based, I propose in my discretion to refuse an order for return. While it is not the function of this Court on an application of this kind to conduct or decide welfare issues as such, when deciding whether or not to exercise its discretion to order for return which involves an examination of the rationale of those objections, it cannot avoid taking into account what will be the plain effect upon a child of making such an order. In this case, that is the disruption of R's schooling and contented home life in England, the distress and feelings of disillusion which I have no doubt he will experience at being forced to return and await the uncertain outcome of the Portuguese proceedings, and the unhappy home conditions to which he will be returning in the light of the mother's character and attitude which will exacerbate rather than diminish his strong objections to living in Portugal. Put colloquially, his objections are largely based on a mature and rational desire for a quiet life in England rather than a conflict- ridden life in Portugal.
75 I bear in mind and take into account that it is the philosophy of the Convention “buttressed” by B2R that, in the ordinary way, the welfare issues involved in custody disputes should be determined in the jurisdiction of habitual residence. However, it is also the philosophy of the Convention that applications for a return should be made swiftly by aggrieved parties aware of their Convention rights and, finally, that in exceptional cases, “child's objections to return” may be so strong and rationally grounded that the Court may in its discretion refuse an application for return which otherwise satisfies the requirements of the Convention.
76 I bear in mind also, as I have warned R, that if I refuse an order for return then the Faro Court may think it appropriate to invoke Article 11 paragraphs 6-8 of B2R and require R's return. That prospect is plainly an important consideration. However, so far as R's welfare is concerned this is not a case where the quality or appropriateness of the home conditions provided by the father are in question. Accordingly if, once having received a copy of this judgment, the Faro Court does decide to order R's return, I do not think that the relatively short extension to R's stay in England which would occur prior to such order for return, would be anything but beneficial for him, engaged as he is in the middle of a school term in a situation where his day to day life is happy and congenial to him rather than a source of stress and unhappiness, as it would be in Portugal whilst awaiting the decision of the Portuguese Court.” [74-76]