M & Anor (Children), Re

The House of Lords considered whether, where a child is found to be "settled" in a new environment under the second paragraph of Article 12 of the Hague Convention 1980, there remains a discretion to order return under the Convention procedures. The court held that Article 12 does not exclude a discretion to return a settled child within the Convention and that Articles 13 and 20 likewise permit a discretionary balancing exercise. In exercising that discretion the court must weigh the policy objectives of the Convention (prompt return and deterrence of abduction) alongside the child-centric considerations (settlement, the child’s views, welfare and any grave risk under Article 13(b) and human-rights issues under Article 20).

The House rejected importing an extra "exceptional" hurdle into the exercise of the Convention discretion. Applying these principles to the facts (significant delay before proceedings, children's settled position, the strength of their objections, and the precarious immigration position), the court allowed the appeal and dismissed the father's Hague Convention application for summary return.

This was an appeal from the High Court and the Court of Appeal concerning two children removed from Zimbabwe to the United Kingdom in breach of the father's custody rights. The father sought their summary return under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (given effect in the United Kingdom by the Child Abduction and Custody Act 1985). The trial judge ordered return ([2007] EWHC 1820 (Fam)); the Court of Appeal upheld that decision ([2007] EWCA Civ 992). The House of Lords allowed the appeal.

Background and procedural history

• The children were brought secretly to the United Kingdom in March 2005; proceedings were not commenced until May 2007. The mother's asylum claim had been refused and the family remained in the United Kingdom because of a moratorium on removal to Zimbabwe.
• The father commenced Hague Convention proceedings; at first instance the judge ordered return, a decision upheld by the Court of Appeal.

Nature of the claim / relief sought

The father sought summary return of the children to Zimbabwe under the Hague Convention.

Issues framed

1. Whether, once a child is demonstrated to be settled in the new environment under the second paragraph of Article 12, there remains a discretion to return the child within the Convention procedures or whether return must be pursued under domestic powers outside the Convention.
2. If a discretion exists, the principles and approach to its exercise and whether any additional "exceptional" test applies.
3. The proper approach to Article 13(1)(c) (the child's objections) and Article 13(1)(b) (grave risk of harm) and to Article 20 / human-rights considerations.

Court’s reasoning

• The court concluded that Article 12's wording (the use of "shall... unless") leaves open a discretion to return a settled child under the Convention; Articles 13 and 20 explicitly envisage discretionary refusal but do not preclude return, and Article 18 preserves other powers.
• The discretion under the Convention is "at large": the court may weigh Convention policy (prompt return, deterrence, comity) alongside child-centric welfare considerations (settlement, maturity and views of the child, risk of harm). It rejected any requirement to apply an additional "exceptional" test when exercising the Convention discretion.
• Applying those principles, the House regarded the delay, the degree of settlement, the children's objections and the immigration consequences as outweighing Convention policy in this case and therefore upheld the appeal, dismissing the father's Hague Convention application.

Appeal allowed. The House held that Article 12 can be read as permitting a discretion to return a settled child within the Convention procedures; that the Convention discretion is exercised by balancing Convention policy considerations against child-centric welfare considerations and objections; and that no additional gloss of "exceptional" applicability should be imported. On the facts (substantial delay, settlement, strength of children's objections and immigration consequences), the father's application for summary return under the Hague Convention was dismissed.

First instance: High Court (Family Division) ordered return: [2007] EWHC 1820 (Fam). Court of Appeal: decision upholding the order: [2007] EWCA Civ 992. House of Lords: appeal allowed: [2007] UKHL 55.