O v O

In a Hague Convention child-abduction case, a return order need not always direct the child to the state from which the wrongful removal occurred. The Convention must be interpreted purposively, having regard to its objects and the child’s welfare. Where the family had already decided to relocate, and the former state of habitual residence had no continuing practical or familial connection, the court could order return directly to the new intended country of residence. A child’s preference to remain with one parent is not necessarily an objection to return under article 13. The preference must concern return itself, rather than separation from that parent.

The mother applied under the inherent jurisdiction and the Hague Convention for the return of the parties’ nine-year-old child, M, from England. The family had lived in Australia, but the parents agreed that they and the children would move to the United States. The father travelled with M from Australia through Thailand to the United Kingdom and then decided to remain in England. The mother did not consent.

The central issues were whether M had been wrongfully removed from Australia, whether her expressed wishes amounted to an objection under article 13, and whether any return order had to be directed to Australia rather than the United States.

1. Wrongful removal. The father’s evidence was unreliable and included repeated lies. The judge found that he had decided before leaving Australia that he would not honour the agreement to move to the United States. M had therefore been wrongfully removed from Australia, rather than wrongfully retained after a lawful departure.
2. Article 13 objection. M’s expressed wish was to remain with her father. She preferred to stay in England with him and, if he moved to the United States, to move with him. That was a preference about living with her father, not an objection to returning to the United States. It therefore did not engage the article 13 exception. The judge also took account of the period M had spent solely with her father, her limited recent contact with her mother, and the father’s repeated questioning of her.
3. Destination of return. Section 1(2) of the Child Abduction and Custody Act 1985 gives force of law in the United Kingdom to the Convention provisions set out in Schedule 1. The Schedule begins with article 3 and does not include the preamble or article 1. The preamble and article 1 therefore did not compel return to Australia.
4. The Convention required a purposive interpretation. Its object was the prompt return of a wrongfully removed child from the state of habitual residence, but it would be artificial and contrary to M’s interests to return her to Australia, where the family had decided not to live and where there were no continuing family or practical ties. The Convention permitted return directly to the United States, where the parties had intended to settle and where welfare proceedings were pending.
5. The same result was independently available under the inherent jurisdiction. Article 18 did not prevent that jurisdiction from being used. The court accordingly ordered M’s return to the United States, taking account of comity and the confidence properly placed in the United States courts to determine welfare issues.