Child abduction

In re M and another (Minors) HL TLR 6 December

The House of Lords unanimously reversed the order of the Court of Appeal and the High Court judge at first instance that two children should be returned forthwith by their mother to Zimbabwe, where the father was resident and from which the mother had removed them. Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 provides: ‘Where a child has been wrongfully removed or retained…and, at the date of the commencement of the proceedings… a period of less than one year had elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith…The…authority, even where the proceedings have been commenced after the expiration of the period of one year… shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment’. Although the trial judge had found that the children were now settled in their new environment, he had clearly indicated that he considered that he had to find something exceptional in the case, over and above the conventional grounds of opposition which he had found established, before he could refuse to order a return. There is little doubt that a view has crept in that ‘exceptional’ was not merely a description, to be applied to a small number of exceptions in which the court had power to refuse to order a return, but also an additional test to be applied, after a ground of opposition had been made out, to the exercise of the court’s discretion. There was no doubt at all that it was wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return might be refused were themselves exceptions to the general rule. That in itself was sufficient exceptionality. It was neither necessary nor desirable to import an additional gloss into the Convention. The Convention itself had defined when a child had to be returned and when s/he need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child would vary enormously. The extent to which it would be appropriate to investigate welfare considerations would also vary. But the further away one got from the speedy return envisaged by the Convention, the less weighty general Convention considerations had to be.