AH v CD & Ors

Where a child is settled in England and the settlement exception to return under the Hague Convention is established, the court retains a broad discretion whether to order return. It must weigh Convention policies, including comity and deterrence, against settlement, the child’s views and welfare. The child’s welfare cannot be sacrificed merely to secure general deterrence.

If return is ordered, the court has jurisdiction to make protective and interim directions supporting implementation, including directions under the Child Abduction and Custody Act 1985. The power may be exercised at the same time as the final return decision where necessary to protect the child pending departure.

The father applied under the 1980 Hague Child Abduction Convention for the return of B to Spain, following B’s abduction from Spain in 2014. He also sought enforcement of Spanish orders concerning B. The court had previously found that B was settled in England, establishing a defence to summary return, and adjourned the application for a fuller welfare enquiry.

By the resumed hearing, the mother no longer pursued the discharge of care orders or the return of either child to her care. The remaining issues were whether B should return to Spain to live with his father, what arrangements should govern contact with his mother and brother W, and what protective measures should operate before departure.

1. The court ordered B’s return to Spain to live with his father. The settlement exception meant that return was discretionary, not automatic. The relevant discretion was at large and required consideration of Convention policy, comity, deterrence, settlement, B’s views and wider welfare considerations.
2. The abduction was a flagrant breach of Spanish court orders and the Spanish court continued to exercise substantive jurisdiction. Those factors supported return. Although B had been settled in England in September 2017, the circumstances had materially changed and he was no longer settled in the relevant sense.
3. The welfare evidence overwhelmingly favoured B living with his father in Spain. The father was found trustworthy and able to promote B’s relationship with his mother and W. The mother’s continuing lack of insight presented an ongoing risk. B’s wishes were relevant but, given his age and circumstances, were not determinative.
4. The court had jurisdiction to make protective directions supporting return. The wording of section 5 of the Child Abduction and Custody Act 1985 did not prevent a direction being made at the same time as determination of the application, where it was needed to protect the child pending implementation. The court also referred to protective jurisdiction under articles 11 and 12 of the 1996 Hague Child Protection Convention and article 20 of BIIa.
5. The care order relating to B was discharged when he finished school. B was thereafter to be accommodated by the local authority under section 5 of the Child Abduction and Custody Act 1985, with injunctions restricting removal and contact pending his departure. Contact with the mother was to be professionally supervised, and arrangements for contact with W were to follow the agreed proposals.