M (Children), Re

Where a child has been wrongfully removed and a discretionary defence is established under the Hague Convention, the court retains a discretion to order return. Settlement or substantial objections do not make return unavailable. The court must balance the Convention’s policy, the child’s welfare, the nature of the removal, the child’s circumstances and all other material factors. Viewed overall, the case must properly be exceptional before discretion is exercised against return. A judge must explain the balancing exercise sufficiently to show how competing factors, including settlement and objections, were weighed. An appellate court may exercise the discretion afresh where the first-instance reasoning is inadequate, provided the findings of fact and credibility enable it to do so.

The mother wrongfully removed two children from Zimbabwe to England. The father applied under the Hague Convention. The judge found that the children had settled in England and objected to return, but also found that their objections were not determinative and that they could be cared for by their father in Zimbabwe. He ordered their return, relying on the Convention’s policy, the nature of the removal, the children’s roots and the father’s undertakings.

The mother appealed, principally challenging the exercise of the residual discretion and contending that the judge had applied an additional exceptionality requirement. The central issue was whether the discretion had been exercised on the correct basis and with sufficient regard to the competing factors.

1. Appeal dismissed. Thorpe LJ and Longmore LJ upheld the order for return. Moore-Bick LJ considered the first-instance reasoning flawed but exercised the discretion afresh and reached the same result.
2. Once settlement under article 12(2), or objections under article 13, has been established, the court retains a discretion concerning return. The discretion requires an overall balance between the purposes and policy of the Convention, including prompt return and respect for the requesting state’s processes, and the welfare and circumstances of the children. The court must be satisfied that the case is properly exceptional before refusing return. The word “exceptional” describes the outcome in the context of the Convention’s policy; it is not an additional or repetitive threshold imposed after a defence has been made out.
3. The relevant considerations included the nature and seriousness of the wrongful removal, the quality and stability of settlement, the child’s objections and their strength, parental misconduct, available care on return, family and cultural ties, the requesting state’s conditions, and the child’s welfare. Settlement and objections are important but not necessarily conclusive.
4. A judge must give sufficient reasons to demonstrate how competing factors were weighed. Moore-Bick LJ regarded paragraphs 118 to 121 as inadequately reasoned because the judge gave little express weight to settlement, objections and conditions in Zimbabwe. The appellate court could nevertheless determine the discretion itself on the judge’s findings, including the father’s good relationship with the children, their Zimbabwean roots, the finely balanced nature of settlement, the absence of real personal danger, and the limited strength of the objections.
5. The court concluded that return was justified by the Convention’s policy, the mother’s serious misconduct, the father’s care and relationship with the children, and their family and cultural ties. The children’s settlement was comparatively precarious and their objections were genuine but not sufficiently strong to outweigh those considerations. Order: appeal dismissed.

• Court of Appeal (Civil Division) [2007] EWCA Civ 992: appeal dismissed and return order upheld.
• High Court of Justice, Family Division, before Mr Justice Wood: found settlement and children’s objections established, but exercised the residual discretion in favour of immediate return.