AT v SS (No 2)

Under Article 12 of the 1980 Hague Convention, once a return order is made, the child must be returned forthwith. A short delay is permissible only to identify and implement practical arrangements required for a safe return. The delay must remain strictly limited to what is reasonably necessary for that purpose. Personal circumstances of the abducting parent do not ordinarily justify further delay, particularly where the foreign court is already seised of the child’s welfare. Any application based on inability to travel must be supported by cogent evidence addressing the proposed period and available means of travel.

The court had previously ordered the return of a five-year-old child to the Netherlands under Article 12 of the 1980 Hague Convention. The order was temporarily delayed so that arrangements could be made for notification of the Dutch authorities, transportation, and interim foster or kinship care because the mother had said that she would not accompany the child.

The mother later changed her position after giving birth to another child and sought a further two-month delay so that she could travel with the child. The issue was whether her recent caesarean birth, the new child’s passport position, and the proposed arrangements justified varying the return order.

1. The application to postpone return for a further two months was dismissed. The existing order was varied only to provide that the child be returned to the Netherlands by 11.59 pm on 17 November 2015.

2. Article 12 requires the return itself, rather than merely the making of the order, to occur forthwith. Articles 1 and 2 reinforce the Convention’s objective of prompt return and the obligation to use the most expeditious procedures available. The court applied the approach in Re M (Abduction: Zimbabwe) [2007] 3 WLR 975, [2008] 1 FLR 251.

3. The court may allow a short period before return to identify and implement practical steps necessary to achieve a safe return. That jurisdiction does not permit delay for purposes unrelated to those arrangements. The period must be strictly limited to what is reasonably required. The court applied R v K (Abduction: Return Order) [2010] 1 FLR 1456 and the guidance in Re M (Abduction: Undertakings) [1995] 1 FLR 1021.

4. Once the identified arrangements had been completed, the purpose of the original delay had been exhausted. The mother’s difficult post-natal circumstances did not fall within the narrow category permitting further delay. In any event, she had not produced cogent evidence establishing that she could not travel with the child for two months by any available means.

5. The court also had to avoid usurping the functions of the Dutch court, which was seised of the welfare proceedings and had authorised interim foster care. The return order was therefore maintained subject only to the limited variation required to implement the confirmed arrangements.

First-instance application to vary an earlier return order. The earlier order was made on 29 September 2015; the court’s reasons were recorded in [2015] EWHC 2703 (Fam).