MM v VM

In Hague Convention proceedings, the parent opposing return bears the burden of establishing any Article 12 or Article 13 defence on the balance of probabilities. Consent must be real and unequivocal; acquiescence depends principally on the wronged parent’s actual state of mind. Article 13(b) requires clear and compelling evidence of a grave risk of substantial harm or an intolerable situation, assessed by reference to the particular children and circumstances. A child’s objection is not determinative and must be weighed against the Convention’s policy of prompt return. Even where settlement or a discretionary defence is established, return may still be ordered in an exceptional case. Immigration considerations do not displace the Family Division’s Hague Convention jurisdiction.

The father sought the return of his two daughters to Zimbabwe under the Child Abduction and Custody Act 1985 and the Hague Convention. The children had been removed from Zimbabwe to England in March 2005. The mother relied on settlement, consent, acquiescence, grave risk and intolerability, and the children’s objections. She also relied on the general political and social conditions in Zimbabwe, her family’s immigration position, and alleged risks to herself and the children on return.

The central issues were whether the removal was wrongful, whether any Convention defence was established, whether the children were settled or objected to return, and whether the court should exercise its discretion against return.

1. Wrongful removal and burden. The children were habitually resident in Zimbabwe immediately before removal. The mother bore the burden of proving each asserted defence on the balance of probabilities, with careful attention to the cogency of the evidence.
2. Consent and acquiescence. The father had not consented to permanent removal. The evidence of secrecy, false travel documents and preparations for departure was compelling. Nor had he acquiesced. His inactivity was explained by his lack of knowledge of the Convention remedy and inability initially to fund proceedings. Acquiescence depended on his subjective state of mind, and the evidence showed a continuing wish for the children’s return.
3. Settlement. The children were settled in England within Article 12, notwithstanding the precarious immigration position. Settlement included physical and emotional factors. The court nevertheless retained a discretion under Article 18 to order return.
4. Grave risk and intolerability. The evidence did not establish that Zimbabwe was a failed state or that return would expose these children to a grave risk of physical or psychological harm or an intolerable situation. The asserted risks to the mother, her husband and the children fell materially below the high Article 13(b) threshold.
5. Children’s objections. The children objected and were sufficiently mature for their views to be considered. Their views were, however, influenced by their wish to remain with the abducting parent and by the household’s attitude towards Zimbabwe. Their objections were not sufficiently strong or independent to justify non-return.
6. Discretion and orders. The case was not exceptional. The court exercised its discretion in favour of immediate return, accepted the father’s undertakings, and ordered the children’s return to Zimbabwe. The undertakings were intended to secure the children’s welfare until the Zimbabwean courts assumed jurisdiction.

First-instance decision of the High Court (Family Division). No appellate history was stated in the judgment.