If one parent, without the consent of the other parent and in violation of their custody rights, moves the child from their habitual residence state to another state or unlawfully retains them there, then the "Hague Convention on the Civil Aspects of International Child Abduction" of 1980, provided the conditions for its applicability are met, generally requires the immediate return of the child to their habitual residence state.
The purpose of the Convention is not to resolve custody disputes in return proceedings. The return case does not determine with which parent the child should permanently live, which parent's residence is in the child's best interests, or which state would provide better living conditions for the child. Its main aim is to restore the legal situation that existed before the unlawful removal or retention and to prevent one parent from effectively changing the competent court for resolving custody disputes by moving the child to another state.
However, the obligation to return the child is not absolute. The Convention provides for limited exceptions under which the court of the return state may refuse to return the child.
One such independent exception is the child's objection to the return.
According to the second paragraph of Article 13 of the Hague Convention, the court may refuse to order the return of the child if it finds that the child objects to the return and has reached an age and degree of maturity at which it is appropriate to consider their views.
This basis must be distinguished from the exception of "serious risk" provided for in Article 13(1)(b) of the Convention. In the case of a child's objection, it is not necessary to independently prove that the return would cause them serious physical or psychological harm or place them in an intolerable situation. The child's objection is a separate legal basis for rejecting the return.
1. Assessment of the Child's Objection: What Does the Court Actually Check?
The second paragraph of Article 13 of the Hague Convention does not make the child's opinion a component of the usual "best interests" assessment regarding the return. It establishes an independent exception to the general obligation of return. The application of this exception, according to established international judicial practice, has at least two sequential phases.
First, the court must ascertain:
• whether the child actually objects to the return,
• and whether they have reached an age and degree of maturity at which it is appropriate to consider their views.
Only after overcoming this preliminary threshold does the second question arise: whether the court should exercise its discretion in the circumstances of the case and refuse to return the child.
This differentiation is important because the child's opinion does not automatically mandate the rejection of the return, nor can it be formally heard and then ignored solely on the grounds that the main purpose of the Convention is the swift return of children.
The child's "wish" and "objection" to the return are not essentially the same. The first and often most complex question is what exactly the child is objecting to.
In the sense of the Hague Convention, the child's return does not mean the final transfer of custody to the other parent. By the return order, the child is generally returned to their habitual residence state, where custody, residence, and contact with parents issues must be resolved.
Living in the current country may be more pleasant or convenient for the child, but that does not mean that, in the sense of Article 13, they object to the return. Otherwise, the exception for return could turn into a comparison of living conditions between two states, which contradicts the logic of the Hague Convention.
However, a too high threshold should not be created between "preference" and "objection" that is not foreseen by the content of the Convention.
International judicial practice has accepted that the child's position does not necessarily have to reach the level of extreme resistance, panic, or categorical refusal to return. The question is much more substantive: does the child's expressed view actually indicate opposition to the return, and can they explain the reasons for it?
2. The Convention Does Not Set a Minimum Age for Considering the Child's Opinion.
The Hague Convention does not specify any particular age from which the child's opinion can or should be taken into account. This approach is not accidental.
The preparatory materials of the Convention discussed the possibility of setting a minimum age, but this was rejected because any uniform age limit could be arbitrary and fail to take into account significant individual differences in children's development.
Therefore, the court must assess both the child's age and their degree of maturity in each case separately.
Age alone is not decisive. Two children of the same age can be completely different in their ability to understand the situation, analyze events, form their own views, and comprehend the consequences.
Moreover, "maturity" in Hague cases should not be equated solely with the child's overall intellectual development, ability to learn well, or ability to communicate freely with adults.
The question of interest to the court is narrower and at the same time more complex: does the child have sufficient maturity to form an independent and reasoned opinion specifically regarding their return.
During this assessment, factors such as the following may be significant:
• to what extent the child understands what return means,
• whether they differentiate between temporary return and a final decision on custody,
• whether they can explain the reasons for their position,
• whether they understand the immediate and longer-term consequences of their choice,
• how consistent their reasoning is,
• whether their position is based on their personal experience,
• whether they can discuss not only desirable but also undesirable options for themselves.
Thus, the assessment of maturity should not turn into an "interrogation" of the child. The goal is not to obtain legally perfect answers from the child, but to understand to what extent their expressed position can be regarded as a formed and reasoned opinion about their own situation.
For this reason, older age generally increases the possible weight given to the child's opinion, but there is no automatic rule.
In other words, the opinion of a 14-year-old child is not necessarily decisive solely because of their age, just as the view of an 8 or 9-year-old child cannot be disregarded simply because they have not yet reached any conventional age threshold.
3. Why Does the Child Object to the Return?
The reasons for the child's position are of significant importance. The court must try to understand on what experiences, fears, memories, relationships, or expectations the child's objection to the return is based.
It is one thing when a child says they do not want to return because they have a bigger house in the new country or they like the school better. It is entirely different when the objection is related to events the child has seen or experienced in the past, relationships with the other parent, violence in the family, constant disputes, controlling behavior, or other circumstances.
This does not mean that the reasons cited by the child must be accepted by the court as indisputably proven facts.
But the court is obliged to understand why the child has formed that position.
It is especially important when the child's objection is not limited to a general expression but has consistent reasoning and is connected to their personal experience.
This aspect is also important because the basis of the child's objection and the existence of serious risk as provided for in Article 13(1)(b) are legally different exceptions, yet the factual circumstances in the same case may partially overlap.
For example, a child's fear of having witnessed domestic violence may simultaneously be significant in assessing the risk of psychological harm resulting from the return and in understanding why the child personally objects to the return.
However, it is not necessary for the objection to reach the evidentiary threshold required for the existence of serious risk in order to apply the exception for the child's objection. Here, the court's task is to assess whether the child's position is directed and to what significance.
4. The Presence of Parental Influence Does Not Mean That the Child's Opinion Should Be Ignored.
The assessment of the independence of the child's position in Hague Convention cases is one of the most sensitive issues, as the court must determine whether the child's expressed opinion is their own, freely formed will, or whether it has been shaped under the influence, pressure, or manipulation of one of the parents.
In international abduction or unlawful retention cases, the child often lives for months, sometimes even longer, with the parent who has moved or retained them in another state. It is natural that the behavior, conversations, and assessments of that parent have a certain influence on the child.
However, this circumstance alone is not sufficient to conclude that the child's opinion is "influenced" and should be ignored.
In judicial practice, the main question is posed differently: what was the nature and degree of parental influence, and whether it has distorted the formation of the child's own position to the extent that their expressed opinion can no longer be regarded as genuinely theirs.
This differentiation is fundamental.
The child may love the parent with whom they live, share some of their assessments, or discuss past events with them. This does not necessarily mean that the child's opinion lacks independent value.
It is a different situation when there is evidence that the child has been subjected to targeted pressure, forced to choose between parents, provided with information that does not correspond to reality, consistently fostered negative attitudes towards the other parent, or involved in the parents' conflict in such a way that their expressed position primarily reflects not their own, but the parent's desire.
Therefore, during the assessment of parental influence, it may be significant:
• whether the child describes their position in their own words,
• whether their reasoning corresponds to their age,
• whether it stems from the child's personal experience,
• whether the position is maintained over different times,
• whether it is expressed similarly in conversations with different professionals,
• whether the child's speech contains legal or other expressions typical of adults,
• whether there are signs of pressure, intimidation, or preparation of answers.
Thus, the court should not seek a completely "pure" opinion from the child, free from parental influence; in real life, this is rarely possible.
The legal question is whether the existing influence has distorted the formation of the child's own will to the extent that the objection expressed regarding the return can no longer be considered genuinely theirs.
5. The Method of Establishing the Child's Opinion Is Also Important.
It is impossible to assess the child's opinion without hearing it in conditions that minimize the impact of parental conflict.
In Hague cases, placing the child in a situation where they must choose between one of the parents before the court can be harmful in itself.
Therefore, the child's opinion may be established in different ways in different states—through direct conversation with the judge, a psychologist, a social worker, a specially appointed expert representing the child's interests, or other appropriate mechanisms.
Here, it is important not only what the child has said but also under what conditions they said it.
If the interview with the child took place in the presence of one parent, through leading questions, or in a situation where the child clearly felt the parent's expectations, the assessment of the value of that opinion will naturally be different.
In contrast, a neutral conversation with a professional may allow the court to gain a clearer understanding of the child's true position, its reasons, and degree of maturity.
At the same time, listening to the child should not become a means of placing the ultimate responsibility for the outcome of the case on them.
The child should not be asked in such a way that it seems they must choose which parent to live with or which state to remain in.
The ultimate responsibility for the decision lies with the court.
The child's opinion is important evidence and, in some cases, an independent basis for rejecting the return, but the child should not become the person resolving the parents' international dispute.
6. Confirming the Child's Objection Does Not Automatically Mean Rejection of the Return.
If the court confirms that the child actually objects to the return and has reached an age and degree of maturity at which it is appropriate to consider their opinion, this concludes the first phase of the applicability of the exception.
But the return is still not automatically rejected.
The wording of the Convention is that the court may refuse the return in such cases.
This means that after confirming the conditions of the exception, the second phase of judicial discretion begins.
In this phase, the court assesses the entirety of the circumstances of the case and decides what weight should be given to the child's objection in that case.
In international judicial practice, during this assessment, the following may be significant:
• the child's age,
• the degree of maturity,
• the strength and stability of the objection,
• the nature of the reasons presented by the child,
• the connection of those reasons to the child's personal experience,
• the possible degree of parental influence,
• the actual conditions of the return,
• as well as the overall objectives of the Hague Convention.
At the same time, after confirming the conditions of the exception, the court cannot create additional requirements not provided for by the Convention and demand proof that the case is also "exceptional" in some separate sense to reject the return.
The Convention itself has determined under which circumstances an exception to the general rule of return may be applied.
Similarly, the court's discretion does not mean that the child's opinion can simply be formally recorded and then return to the presumption that the child must be returned in all cases.
If the child has reached the degree of maturity required by the Convention, their position must become the subject of real assessment.
The older the child is and the higher their degree of maturity, and the more clearly, consistently, independently, and based on personal experience their objection to the return is, the greater the weight that position may have in the court's final decision. However, the child's opinion is neither automatically decisive nor secondary. The court must explain what weight it has given to it and why.
Attorney Hasmik Ohnikyan