When a Child’s Objection Is Not Enough – Interpreting Article 13(2) of the Hague Convention

One of the most frequently invoked defenses in international child abduction proceedings concerns the child’s own objection to return. According to Article 13(2) of the Hague Convention on the Civil Aspects of International Child Abduction, courts may refuse to return a child if they object and have reached an age and degree of maturity at which it is appropriate to consider their views. Although this provision reflects the increasing acknowledgment of children’s autonomy in family law, courts in various jurisdictions have consistently emphasized that this exception should be interpreted cautiously.

A recent decision delivered by the Bucharest Court of Appeal illustrates the careful judicial balancing required when assessing the maturity and independence of a child’s views in return proceedings.

The case involved two children, aged 14 and 12, who were brought to Romania by their mother from Italy, their state of habitual residence. Initially, Bucharest Tribunal dismissed the return application after hearing the children and concluding that their objections to returning were firmly expressed, coherent, and reflective of a sufficient level of maturity. Based on this, the court determined that the conditions of Article 13(2) were met and that the children’s preferences should be honored.

In reaching its decision, the first-instance court also relied on the conclusions of the Romanian psychologist who attended the children’s hearing; however, those conclusions were based on minimal information obtained during a single, very brief meeting with the minors and were issued in circumstances that raised concerns regarding compliance with Article 10 of Law No. 369/2004.

However, the matter took a different turn on appeal. A key element that emerged in the proceedings was the existence of psychological reports prepared by specialists during parallel proceedings on the merits in Italy. The report suggested that the children displayed what psychologists often describe as alliance behavior with the mother—an alignment that can sometimes affect the independence of a child’s expressed preferences.

During the appellate proceedings, the children were heard again. They reiterated their wish to remain in Romania with their mother. Nevertheless, the appellate court undertook a deeper analysis of the content and basis of those views based on all evidence deposited with the court files. The judges examined not only the consistency of the children’s statements but also whether their objections were supported by concrete experiences or independent reasoning.

The court ultimately concluded that although the children were of an age where their opinions might be considered mature, the reasoning underlying their preference lacked a sufficient factual basis. Moreover, the psychological evidence suggested that their position was influenced by the dynamics of their relationship with the mother. In such circumstances, the court held that the requirements of Article 13(2) were not met.

Accordingly, the Bucharest Court of Appeal overturned the first-instance decision and reaffirmed the fundamental objective of the Hague Convention: the prompt return of children wrongfully removed or retained, leaving the substantive custody dispute to be resolved by the courts of the child’s habitual residence.

This reasoning aligns with the broader international approach to Article 13(2). As noted by Rona Schuz in The Hague Child Abduction Convention: A Critical Analysis, the child’s objection defense must be applied carefully to ensure that the Convention’s return mechanism is not undermined. The child’s views are an important factor, but courts must assess whether those views are genuinely independent, mature, and grounded in the child’s own experience rather than shaped by parental influence.

The decision is therefore a reminder that age alone does not determine maturity in the context of Article 13(2). Even adolescents may express preferences that are strongly influenced by the surrounding family dynamics. For courts applying the Hague Convention, the central task remains distinguishing between a child’s authentic, autonomous objection and one that reflects external pressure or alignment with a parent.

In an area of law where emotional and psychological factors intersect with international legal obligations, this distinction is essential for maintaining the integrity of the Convention’s framework while still respecting the voice of the child.

Law Office of Ana-Maria Alexandru

Bucharest Bar, Romania

Website: www.alexandru-lawoffice.ro

E-mail: amalexandru@outlook.com