M v G

Under the Hague Convention, a child wrongfully retained after a temporary visit should ordinarily be returned promptly. Consent to permanent removal or retention must be clear, unequivocal and operative when the retention occurs. A grave-risk defence requires a serious risk of physical or psychological harm, or an intolerable situation for the particular child. Adequate protective arrangements may answer that risk.

A child’s preference to remain with the abducting parent is not necessarily an objection to return. The court must distinguish preference, separation anxiety and opposition to the home country, and assess age and maturity. Even where an exception is established, discretion must be exercised in light of Convention policy, the circumstances of the exception and the children’s welfare. A return order may exceptionally be suspended to allow proceedings in the home country to progress.

The father applied for the summary return of his two Romanian children under the Hague Convention and Article 11 of Council Regulation (EC) 2201/2003. The children had travelled to England for a two-week holiday but remained there after the agreed return date. The mother relied on alleged consent to permanent removal, grave risk of harm or intolerability, and the children’s objections.

The Romanian courts were considering related applications concerning the children’s residence and the mother had permission to remain in England until 31 August 2017. The issues were whether the retention was wrongful, whether an Article 13 exception was established, and, if so, how discretion should be exercised.

1. Wrongful retention and consent. The children were habitually resident in Romania and the father was exercising custody rights. The mother had not established clear and unequivocal consent to permanent removal or retention. The notarised agreement concerned only a holiday, and the surrounding history showed continuing disagreement. Applying the principles in Re P-J (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588, consent had to be operative when retention occurred. The consent defence therefore failed.
2. Article 13(b). The allegations of past violence and the children’s psychological difficulties did not establish a grave risk of physical or psychological harm or an intolerable situation. The threshold was high. Financial hardship short of destitution or homelessness was insufficient. The father’s undertakings, together with protection available in Romania, constituted adequate arrangements under Article 11(4) of BIIa.
3. Children’s objections. The children expressed a strong preference to remain in England, principally with their mother, but did not give specific or reasoned objections to Romania itself. Their views had been affected by exposure to adult conflict, and they lacked the age and maturity at which substantial weight should be placed on them. The gateway under Article 13 was therefore not established.
4. Discretion and order. The Convention’s policy favoured return and the Romanian courts were better placed to determine the children’s long-term welfare. Even if an exception had been made out, the court would have exercised its discretion in favour of return. Exceptionally, however, the return order was suspended until 1 September 2017, unless the Romanian court extended or replaced the permission to remain in England. The father’s application was allowed subject to that suspension.