Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider the extent of the exceptions to the duty to return children. It was not appropriate for English Courts to add a gloss to the tests set down in the Convention by inserting the word ‘exceptionally’, but instead the Convention should be applied in its terms. Because the children had become settled here after residing here for more than two years, they should not be returned.
Baroness Hale explained as follows: ‘In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another’s judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states.
My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child’s rights and welfare.’
Judges:
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
Citations:
[2007] UKHL 55, Times 06-Dec-2007, [2007] 3 WLR 975, [2008] AC 1288, [2008] 1 All ER 1157, [2008] 1 FCR 536, [2008] 1 FLR 251, [2008] Fam Law 298
Links:
Statutes:
Child Abduction and Custody Act 1985 5, Hague Convention on the Civil Aspects of International Child Abduction
Jurisdiction:
England and Wales
Citing:
Cited – Re C (Abduction: Settlement) FD 28-May-2004
The mother had unlawfully and against the father’s wishes, brought the child to the UK from the US. She hid their identity and whereabouts for a year, and resisted the father’s request for his return to the US, saying the child was settled here.
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Appeal from – Re M (Children) CA 12-Sep-2007
. .
At first instance – MM v VM (Also VRM) FD 26-Jul-2007
. .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Cited by:
Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Applied – In re O (Children) CA 16-Feb-2011
The family had Nigerian nationality, but the father also had US nationality. After the split, M wanted to live with the children in Nigeria, and F wanted them with him in the US. On M’s visit to the UK from Nigeria with the children, the father . .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.
Children, International
Updated: 06 May 2022; Ref: scu.261808
