D (A Child) V

In proceedings under the 1980 Hague Convention, a requested court must determine expeditiously whether removal was wrongful and whether the child’s return is required. Delay in obtaining an Article 15 response does not suspend that duty. The response is not determinative, and the court must decide custody rights under the Convention’s autonomous meaning on the evidence available. A parent’s rights to watch over a child’s growth, upbringing, education and professional training may amount to rights of custody, even where the foreign court describes the parent as having only access rights. A party cannot rely on circumstances substantially created by wrongful removal to establish an Article 13(b) defence. Where the courts of the child’s habitual residence are properly seized of subsequent residence, education, contact and financial issues, delay does not justify converting return proceedings into a welfare determination.

The mother removed D from Romania to England on Christmas Eve 2002. The father applied under the 1980 Hague Convention for D’s return. Proceedings were delayed for more than three years while the parties and the courts addressed whether the father had rights of custody under Romanian law, including an Article 15 request to the Romanian courts.

Hogg J held that the removal was wrongful under Article 3 and rejected the mother’s Article 13(b) defence based on the passage of time, the child’s settled circumstances in England and the risk of psychological harm or an intolerable situation. She ordered D’s peremptory return. The central issues on appeal were whether the father had Convention rights of custody, whether the delay altered the Article 13(b) analysis, and what order should be made in light of current proceedings in Romania.

1. Appeal dismissed. The order for return was maintained in principle, but required variation to respect the temporary leave granted by the Romanian court and to avoid unnecessary movement before the outcome of the Romanian proceedings was known.
2. Per Lord Justice Thorpe, the father’s rights under Romanian law went beyond mere contact. The rights to watch over the child’s growth, upbringing, education and professional training, together with associated parental responsibilities, constituted rights of custody within the autonomous meaning of the Convention. The English court was entitled to reach that conclusion despite the Romanian courts’ description of the father as having rights of access only.
3. The requested state’s duty to determine an application expeditiously is not relieved or suspended by delay in obtaining an Article 15 response. Because that response is not determinative, the requested court must proceed on the evidence available and decide whether Convention rights of custody are established.
4. The exceptional delay did not justify reopening welfare considerations under Article 13(b). The mother’s reliance on her and the child’s established life in England was undermined by the wrongful removal and could not be used to advance a defence based on the consequences of that wrongdoing. The Romanian courts had also been seized of the current issues concerning residence, education, contact and financial responsibility.
5. The judgment identified the importance of liaison judges and judicial collaboration in Convention cases, particularly in securing prompt information about Article 15 requests. Lord Justice Moses and Mr Justice Hedley agreed with the judgment and order.

1. Court of Appeal (Civil Division) [2006] EWCA Civ 830: appeal dismissed. The Family Division’s return order was to be varied to reflect the temporary Romanian order and pending Romanian proceedings.
2. Family Division, Principal Registry: Hogg J found that the removal was wrongful under Article 3, rejected the Article 13(b) defence and ordered D’s peremptory return.