AF v M B-F

Under the Hague Convention, a parent’s right to co-decide a vital matter affecting a child’s upbringing and education may amount to a right of custody. A long-term relocation abroad may therefore require that parent’s agreement, even where the other parent has day-to-day care.

Acquiescence requires proof of knowledge of the removal, its unlawfulness and the relevant rights. Delay alone is insufficient. In a child-objections case, the court must assess the genuineness and strength of the objections, the child’s age and maturity, possible parental influence and the Convention considerations. No additional test of exceptionality applies. The discretion remains at large, including where Brussels 2 Revised applies.

The mother brought the parties’ two children from Poland to England in December 2006 without informing the father. Polish orders gave the mother day-to-day parental authority but required the parents to co-decide vital matters concerning upbringing, education and medical treatment. The father sought the children’s return under the Hague Convention and Brussels 2 Revised.

The mother relied on the absence of the father’s rights of custody, acquiescence and the children’s objections. The children, aged 13 and nearly 12, opposed return and were found to be mature, genuine and settled in England. The central issues were whether the father had rights of custody, whether he had acquiesced, and how the court should exercise its discretion under Article 13.

1. Rights of custody. Article 5(a) of the Convention has an autonomous meaning. The father’s right to co-decide with the mother on vital matters concerning upbringing and education gave him a right of veto over the children’s permanent relocation from Poland. This was a custody right, rather than merely a right to apply to a court. The removal was therefore wrongful.
2. Acquiescence. Applying Re H (Abduction: Acquiescence) [1997] 1 FLR 872, the mother bore the burden of proving the father’s subjective acquiescence. He had to know of the removal, know that it was unlawful and know, at least generally, of his rights. The unexplained delay in issuing proceedings did not itself establish acquiescence.
3. Children’s objections. The children genuinely objected to return, rather than merely preferring to remain with the mother. They had attained an age and degree of maturity at which their views should be considered. Their objections were not displaced by the earlier Polish psychologists’ report, although that report reduced the weight given to allegations of paternal violence and parental influence.
4. Discretion. Following Re M (FC) and Another (FC) (Children) (FC) [2007] UKHL 55, no additional requirement of exceptionality could be imposed. The discretion under Article 13 was at large. The court had to balance the nature and strength of the objections, their authenticity, welfare considerations and the Convention policies of prompt return, deterrence, comity and respect for the requesting state’s courts.
5. Brussels 2 Revised reinforced the Convention policy through Articles 11(4), 11(6), 11(7) and 11(8), but did not reduce or qualify the Article 13 discretion in child-objections cases. The father’s unexplained delay had allowed the children to become settled and successful in England, and their welfare had materially improved since the Polish assessment. Those factors outweighed the Convention considerations. The originating summons was dismissed and no order for return was made.

First-instance decision. The judgment records earlier proceedings and orders in Poland but no appeal from a lower court decision.