AF v HS

Where an international child removal was initially wrongful, subsequent events may make immediate return proceedings under the Hague Convention inappropriate. This is so where subsisting foreign orders provide for the children to live in the requested state, both parents are living there, and neither parent presently seeks the children’s return to the state from which they were removed. The appropriate course may be to stay, rather than strike out or dismiss, the return application while recognition and enforcement of the foreign orders are determined. The position should be reconsidered if recognition is refused, since that may create a materially different legal and factual situation.

The French father and Danish mother had three children who had been habitually resident in France. The mother brought the children to London without the father’s consent while proceedings in France were pending. The French first-instance court subsequently ordered that the children should live with the father in London, and the Paris Court of Appeal confirmed that order.

Although the father applied under the Hague Convention for the children’s return to France, he stated that he wanted them to live with him in London and intended to seek recognition and enforcement of the French orders there. The mother sought summary dismissal or strike-out of the Hague application. The central issue was whether the Hague proceedings should continue while recognition and enforcement of the French orders were pursued.

1. Application stayed. The father’s application for the children’s return to France under the Hague Convention was stayed until the conclusion of proposed proceedings for recognition and enforcement of the subsisting French orders.
2. The mother’s removal of the children from France had, on its face, been a wrongful removal and an act of international child abduction. That historical character did not determine the present procedural outcome.
3. The Hague Convention was not directed to the situation then obtaining. Both parents and all three children were living in London. The father wanted the children to live with him in London pursuant to the French orders, and the mother did not wish to return to France. It was therefore inappropriate presently to pursue an order requiring the children to return forthwith to France.
4. The existence of the French orders and the father’s intention to enforce them in England justified staying the Hague proceedings. The court declined to strike out or summarily dismiss them because the mother intended to resist recognition and enforcement under Article 23 of Council Regulation (EC) No. 2201/2003. If the French orders were ultimately refused recognition, a different legal and factual situation might arise, and the father might then have grounds to seek the children’s return to France.