G (A Minor)

Under the Hague Convention, rights of custody receive an autonomous and purposive interpretation. A parent’s joint rights concerning a child’s residence and education may constitute rights of custody even where domestic law permits travel abroad for a limited period. A removal is wrongful where those rights are breached without consent. Acquiescence requires a subjective acceptance of the children’s continued presence and clear and unequivocal conduct making it unjust to assert return rights. A child’s preference to remain with the abducting parent is not necessarily an objection to return. The objection must have sufficient strength, conviction and rationality. The court may order return under Article 18 without conducting a full welfare inquiry.

The father applied under the Hague Convention for the summary return to Hungary of his two children, who had been removed to England by their mother. The children had been habitually resident in Hungary, where the parents had divorced and the mother had been granted custody subject to the father’s contact rights. The mother relied on Hungarian law, consent, acquiescence and the children’s objections. The central issues were whether the father had rights of custody, whether the removal or retention was wrongful, and whether any Convention defence was established.

1. The application was granted and the children were ordered to return to Hungary. The father established that the children were habitually resident there and that their removal was wrongful.
2. The court treated the Hague Convention as requiring autonomous interpretation. Domestic law identifies the rights held by the parent, but the court must determine whether those rights are rights of custody for Convention purposes. The father’s statutory right under S72/B of the 1952 Marriage, Family and Guardianship Act 1952 to participate jointly in fundamental decisions, including residence and schooling, amounted to rights of custody under Article 3.
3. The mother had not proved consent. The evidence showed no clear consultation or unambiguous agreement before removal. Nor had she proved acquiescence. The father’s negotiations about contact did not demonstrate a subjective intention to accept the children’s continued presence in England or conduct so clear and unequivocal that it would be unjust to permit reliance on his return rights.
4. The children were sufficiently mature for their views to be considered, but their evidence showed a preference for remaining in England and avoiding separation from their mother, stepfather and half-sibling. It did not amount to a cogent objection to returning to Hungary. The objection defence therefore failed.
5. The court also considered that, even if its conclusions on wrongful removal or the defences were wrong, Article 18 permitted an order for return without a full welfare-based inquiry. The children’s established family, educational and social connections in Hungary, and the loss of regular contact with their father and grandparents in England, supported return. Any relocation application was for the Hungarian court.