In re M (FC) and another (FC) (Children) (FC)

Where return proceedings begin more than one year after a wrongful removal and the child is settled in the new environment, article 12 of the Hague Convention removes the duty of return but leaves a discretion to return under the Convention. Once any Convention exception is established, the discretion is at large. No additional test of exceptionality applies.

The court must weigh Convention policy, the circumstances creating the exception, and the particular child’s rights and welfare. The longer the delay, the less weight the policy of swift return may carry. A mature child’s objections require assessment of their strength, authenticity, relationship to welfare and consistency with Convention policy; they need not prevail only in exceptional circumstances.

Two girls were secretly removed by their mother from Zimbabwe to England in breach of their father’s custody rights. The father knew their location by September 2005, but proceedings were not issued until May 2007. The trial judge found that the girls were settled in England and that they objected to returning to Zimbabwe. He nevertheless ordered their return: [2007] EWHC 1820 (Fam).

The Court of Appeal upheld that order: [2007] EWCA Civ 992. The appeal principally concerned whether article 12 permitted the Convention return of a settled child, the proper exercise of the resulting discretion, the treatment of the children’s objections, and whether an additional requirement of exceptionality applied. Grave risk and human-rights grounds were also raised.

1. Appeal allowed unanimously; the Hague Convention proceedings dismissed. Baroness Hale delivered the leading speech. Lord Bingham and Lord Brown agreed with it, and Lord Hope agreed while adding reasons on article 12. The House set aside the discretionary decisions below because the trial judge had treated exceptionality as an additional legal test.

2. Per Baroness Hale, Lord Bingham, Lord Hope and Lord Brown, article 12 permits a settled child to be returned within the Convention procedures. Its mandatory language ends when settlement is demonstrated, but the words governing that exception leave a discretion to return. This construction accords with the other Convention exceptions and preserves the availability of Convention procedures. Lord Rodger preferred the view that settlement ended the Convention’s role and that any return should be ordered under ordinary domestic powers, but he considered that the practical difference would usually be small.

3. Per Baroness Hale, with the agreement of the House on this issue, once a Convention exception is established the discretion is at large. The court may consider Convention policy, the circumstances giving rise to the exception, and the child’s rights and welfare. The exceptions themselves provide the required exceptionality. No further requirement that the overall case be exceptional may be imposed.

4. The weight of Convention policy varies with the exception and the circumstances. Swift return, comity, respect for other Contracting States’ processes and deterrence remain relevant, but they do not invariably outweigh the individual child’s interests. In a settlement case, the primary objective of speedy return can no longer be achieved. It may also cease to be appropriate to assume that the state of origin is the better forum.

5. For a child’s objections, the threshold requirements are an objection to return and sufficient age and maturity. Thereafter the court may consider the nature and strength of the objection, its authenticity, parental influence, its relationship to welfare, the child’s age and the relevant Convention policies. The older the child, the greater the likely weight of the objection, although the child’s view is neither automatically determinative nor presumptively decisive.

6. The girls were settled, genuinely objected to further disruption and had become integrated in England during the prolonged delay. The Convention’s policy carried little weight because prompt return was no longer possible. Those considerations, together with the uncertainties of life in Zimbabwe, justified refusing return. The father remained free to commence other proceedings concerning their future.

7. Baroness Hale added that she would not have disturbed the rejection of the article 13(b) grave-risk ground. Article 20 and Convention rights led to the same non-return result. In the small number of settlement cases, separate representation may appropriately ensure that the children’s viewpoint is not lost between the adults’ competing claims.

1. House of Lords: In In re M (FC) and another (FC) (Children) (FC) [2007] UKHL 55, the House unanimously allowed the appeal, set aside the return order and dismissed the father’s Hague Convention proceedings.
2. Court of Appeal: The court dismissed the mother’s appeal and upheld the return order: [2007] EWCA Civ 992.
3. High Court, Family Division: The trial judge found that the children were settled and objected to returning, but exercised his discretion to order their return to Zimbabwe: [2007] EWHC 1820 (Fam).