FQ v MQ & Ors

For the purposes of the Hague Convention, a wrongful removal is not converted into a wrongful retention merely because the child remains abroad while discussions continue, unless the parents reach a clear agreement or meeting of minds changing the position. Under Article 12, evidence that children are physically and psychologically settled in the requested jurisdiction may justify refusing summary return after one year. A strong preference not to return is not necessarily an objection under Article 13, although the court must consider the children’s welfare when deciding whether to order return. Article 13(b) requires proof of a grave risk of physical or psychological harm, or of an intolerable situation. Emotional difficulty, uncertainty and disruption may fall short of that threshold.

The father applied under the Hague Convention and the Child Abduction and Custody Act 1985 for the summary return of his two children to the United States. The mother had removed them from the United States to England in August 2012. She relied on Articles 12, 13 and 13(b), arguing that the children had become settled in England, objected to returning, and would face a grave risk of harm or an intolerable situation.

The parents had engaged in prolonged discussions about reconciliation and the family’s future. The court had to determine whether those discussions created an agreement which displaced the original wrongful removal, whether the children were settled by the anniversary of the removal, and whether the remaining defences were established.

1. Wrongful removal and retention. The children’s removal from the United States was wrongful. There had been discussions about reconciliation and possible relocation, and at most a loose understanding that the children could remain in England while those discussions continued. There was no agreement or meeting of minds that they could remain long-term. The father’s continuing wish for reunification, and his communications with the United States authorities seeking more time, were inconsistent with such an agreement. No intervening event therefore converted the wrongful removal into a wrongful retention.
2. Article 12 settlement. By 24 August 2013 the children were physically and psychologically settled in England. They had lived with their mother and maternal family, attended school, formed friendships and become integrated into their home and community. The Guardian’s evidence supported the conclusion that they felt safe, secure and stable in England. In those circumstances, and because a return would not be in their interests, the court declined to order their return under Article 12.
3. Children’s objections. The children expressed a strong preference to remain in England, supported by reasons concerning their experience of family life in the United States. That preference did not amount to a clear objection to return. The distinction between an objection and a strong preference could be fine, but the court considered that return would nevertheless involve disruption, anxiety and upheaval.
4. Article 13(b). The mother failed to establish a grave risk of physical or psychological harm or that return would place the children in an intolerable situation. The parents were separated, protective measures were available in the United States, and the children would return with their mother to a familiar home, school and environment. The likely emotional difficulty and uncertainty did not meet the Article 13(b) threshold.
5. The father’s application for summary return to the United States was dismissed.