WX v YZ & Anor

Permission to withdraw Hague Convention proceedings is governed by the overriding objective, including expedition, fairness, proportionality and saving expense, with regard to welfare issues. Hague proceedings are summary proceedings concerning return, rather than proceedings concerning a child’s welfare or upbringing; the welfare checklist in section 1(1) of the Children Act 1989 therefore does not ordinarily govern withdrawal of a Hague application. A welfare-based application under the inherent jurisdiction is different and engages section 1(1). Withdrawal may be preferable to dismissal where it provides finality and avoids residual uncertainty about subsequent remedies under the relevant European regulation.

The separated parents had litigated for several years over the residence and international movement of their 13-year-old daughter. The mother applied for her summary return to Poland under the 1980 Hague Convention on the Civil Aspects of Child Abduction or, alternatively, under the inherent jurisdiction. The child objected strongly to returning to Poland and wished to remain living in England with her father. During the final hearing, the mother accepted that her applications could not succeed and sought permission to withdraw them. The court determined the applicable approach to withdrawal and the consequences of withdrawal rather than dismissal.

1. The court granted the mother permission to withdraw both applications. The Hague Convention application was withdrawn under rule 29.4 of the Family Procedure Rules 2010. The application under the inherent jurisdiction was also withdrawn.
2. Following Ciccone v Ritchie (No 2) [2016] EWHC 616 (Fam); [2016] 1 WLR 3545, the withdrawal of Hague proceedings is governed by the overriding objective in rule 1.1 of the Family Procedure Rules 2010. Relevant considerations include dealing with the case expeditiously and fairly, proportionality and saving expense, while having regard to any welfare issues.
3. Hague proceedings are summary proceedings concerning return, not proceedings concerning the welfare or upbringing of a child. Accordingly, section 1(1) of the Children Act 1989 does not ordinarily govern permission to withdraw a Hague application, and welfare considerations are unlikely to feature heavily.
4. Withdrawal was fair and proportionate. It avoided compelling the mother to pursue an application which she no longer wished to advance and allowed the proceedings to end promptly. It also removed residual uncertainty about whether the mother could pursue the process under Article 11(6)–(8) of Council Regulation (EC) No 2201/2003 after an order of non-return or dismissal.
5. The inherent-jurisdiction application was different because it concerned the welfare and upbringing of the child. Section 1(1) of the Children Act 1989 therefore applied. Withdrawal was permitted because the child urgently needed finality about where and with whom she would live, and it was accepted that she would remain with her father in England. Contact arrangements and a later review were to be governed by separate orders.