In re D (a child)

The appeal concerned an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the return of a child removed from Romania to England in December 2002. The principal legal issues were (i) whether the father's rights under Romanian law amounted to "rights of custody" within the autonomous meaning of article 5(a) and so made the removal "wrongful" under article 3, (ii) the proper status and weight to be given by the requested state to an article 15 determination from the authorities of the state of habitual residence, and (iii) whether any article 13 defences (including the child's objections or a grave risk/intolerable situation) precluded return.

The House held that the Romanian Court of Appeal's article 15 determination of 9 June 2005, which authoritatively construed Romanian law and concluded the father did not have a veto/right to determine the child's place of residence, should have been given substantial weight and was not properly re-opened by the English courts. On the facts the father did not possess rights of custody for Convention purposes when the child left Romania and so the removal was not wrongful; accordingly no obligation to return arose under article 12. The House allowed the appeal.

Background and procedural history:

• The child A was born in Romania in July 1998. His parents divorced in Romania in November 2000. In December 2002 the mother brought A to England without the father's knowledge or consent. Hague Convention return proceedings began in February 2003.
• The English trial judge was presented with conflicting expert evidence about Romanian law and, pursuant to article 15, asked the father to obtain a determination from Romanian authorities. After protracted proceedings the final Court of Appeal in Bucharest (9 June 2005) held that under Romanian law as it stood at the time of removal the father did not have rights amounting to a right of veto over the child's removal and therefore did not have "rights of custody" for Convention purposes; it concluded the removal was not wrongful.
• The English High Court subsequently ordered further evidence from a jointly instructed expert and later ordered the child's return to Romania. The Court of Appeal dismissed the mother's appeal on 24 May 2006. The mother appealed to the House of Lords; the child intervened through a litigation friend.

Nature of the claim and issues framed:

• The relief sought was the child's summary return to Romania under article 12 of the Hague Convention.
• The key issues were (i) whether the father's rights under Romanian law constituted "rights of custody" under article 5(a) so that article 3 made the removal wrongful, (ii) the weight to be attached to an article 15 determination from the state of habitual residence when the requested state has itself sought that determination, (iii) whether any exception under article 13 applied (grave risk/intolerable situation or the child's objections), and (iv) how the child's views should be secured and presented in Hague proceedings.

Court's reasoning and conclusions:

• The House emphasised the autonomous meaning of Convention terms and the need for consistent international application. It reiterated that a parental right to prevent removal from the country of habitual residence (a ne exeat or veto right) falls within article 5(a)'s definition of "rights of custody". Domestic differences in family law do not alter the Convention's autonomous concepts.
• Having received from Romania a fully reasoned, final Court of Appeal determination that the father's rights did not amount to rights of custody at the material time, the English courts should have given that determination decisive weight. Absent exceptional circumstances (for example fraud or clear misapplication of the Convention's autonomous meaning), a requested court should not re-open or re-litigate the foreign article 15 determination by commissioning further expert reports.
• Applying that approach, the House concluded the father did not have rights of custody under article 5(a) when the child was removed in December 2002; accordingly the removal was not wrongful under article 3 and there was no obligation to order return under article 12. It was therefore unnecessary to decide the article 13 defences on this appeal, although the court commented on delay, the child's settled position, and the means of hearing children's views.

Appeal allowed. The House held that the Romanian Court of Appeal's article 15 determination (9 June 2005) that the father did not possess rights amounting to a right to determine the child's place of residence was entitled to substantial weight and should not have been effectively re-opened by the English courts. As the father did not have "rights of custody" within the meaning of article 5(a) when the child was removed, the removal was not wrongful under article 3 and no return obligation arose under article 12.

Appeal to the House of Lords from the Court of Appeal (Civil Division) which had dismissed the mother's appeal from the Family Division: [2006] EWCA Civ 830 (Court of Appeal decision cited in the judgment). Prior to the English proceedings, a final Court of Appeal in Bucharest delivered an article 15 determination on 9 June 2005 that the father's rights under Romanian law did not amount to rights of custody.