AF (Father) v T (Mother) & Anor (Rev 1)

Under Article 11(7) of Council Regulation (EC) No 2201/2003, the court of the child’s former habitual residence may examine custody after a Hague Convention non-return decision. The examination is a welfare jurisdiction, with the child’s welfare paramount and the ordinary range of orders available. A summary return may be ordered where welfare requires it, but return becomes less appropriate as time passes. The state’s withholding of a child’s whereabouts from a parent is a serious interference with family life and is justified only exceptionally, typically where a grave risk is demonstrated by evidence. Even after a delayed application, the court may make a contact order where welfare requires preservation of the child’s relationship with the absent parent.

The father’s son was wrongfully removed from England to Germany by the mother in May 2008. German courts refused summary return under article 13 of the Hague Convention 1980. The father then applied under article 11(7) of Brussels II Revised. The proceedings were seriously delayed, the mother did not participate, and the German authorities withheld the mother’s address and prevented meaningful welfare assessment or contact between the child and the father. The father sought return or residence, alternatively supervised contact. The central issues were whether return remained appropriate, what welfare orders could be made under article 11(7), and whether a directly enforceable contact order should be issued.

1. Jurisdiction and welfare. Article 11(7) provided the gateway for the court of origin to examine custody after the German non-return decision. The court exercised a welfare jurisdiction under section 1(1) of the Children Act 1989. The available orders included residence, contact and, where appropriate, summary return. The examination should ordinarily proceed swiftly and as if the abduction had not occurred, but that approach could not be applied mechanically after a three-year delay.
2. Return. The father accepted that an order for return or residence would be contrary to the child’s welfare. The child was settled with the mother, while the information available to the court did not support the father assuming primary care. Return was therefore dismissed.
3. Contact and human rights. The withholding of the child’s whereabouts had effectively extinguished an existing parent-child relationship. That was a flagrant interference with family life and inconsistent with the state’s positive obligation to promote family contact. Such interference might be necessary and proportionate in exceptional cases, ordinarily involving a risk of life or other very serious harm demonstrated by evidence. No reliable evidence established such a risk here. The father’s past violence towards the mother was condemned, but it had not prevented supervised contact in England and did not establish an ongoing grave risk.
4. Order. The child was to remain living with the mother, who was ordered to make him available for six supervised contacts annually under the German Youth Welfare Authority. The order was supported by an Article 41 certificate and was directly enforceable in Germany. The mother and authority were given liberty to apply to suspend, vary or discharge it.
5. Child’s participation. Although the child had not personally been heard, the court considered a hearing inappropriate under Article 41(2)(c), given his age, immaturity, estrangement from his father and the circumstances preventing a meaningful assessment.

First-instance decision. The judgment records earlier German Hague Convention decisions refusing return, but this was the determination of the father’s subsequent application under Article 11(7) of Council Regulation (EC) No 2201/2003.