A (A Child), Re

Under the 1980 Hague Convention, rights of custody have an autonomous and broad meaning. They include rights arising from joint parental responsibility and the right to determine a child’s residence, even where one parent has the child’s physical placement.

Actual exercise of custody rights does not require continuous day-to-day care. The court should apply the Convention language without adding a requirement that the applicant played a particular level of care. A clandestine removal, opposition to a proposed move and prompt steps to prevent it may evidence actual exercise.

For the Article 13(2) exception, the gateway is whether the child objects to return and has sufficient age and maturity. If established, the discretion is at large and requires a balance between the child’s views, Convention policy and welfare considerations.

The mother applied under the 1980 Hague Convention for the summary return of her 11-year-old son to Italy. She alleged that the father had removed him from Italy to England without her knowledge or consent.

The father disputed that the removal was wrongful. He argued that the mother did not hold or actually exercise rights of custody. Alternatively, he relied on the Article 13(a) and Article 13(2) exceptions. The child objected to returning to Italy and had been living and attending school in England for approximately one year when the application was heard.

The central issues were whether the mother had rights of custody which were actually exercised, whether the child-objections exception was established, and how the resulting discretion should be exercised.

1. Wrongful removal. The mother held rights of custody under Italian law. The 2017 Italian order provided for joint custody, and the Italian parental-responsibility provisions included joint decision-making about the child’s habitual residence. Those rights fell within the autonomous and broad Convention meaning of rights of custody. The removal breached them.
2. Actual exercise. Article 3(b) requires a broad approach. It does not require continuous physical care or the application of a separate test requiring a reasonably meaningful role. The mother was actually exercising her rights. She remained an important figure in the child’s life, had opposed the proposed move to England, and the clandestine removal and her prompt report to the police indicated that she would have acted to prevent it had she known.
3. The Article 13(a) exception was not established. The judge considered it difficult to conceive of circumstances in which a parent could be actually exercising rights for Article 3 but not for Article 13(a). On the facts, the mother was exercising those rights for both purposes.
4. Child objections. The child’s opposition to returning to Italy was a genuine objection rather than a mere preference. He had attained sufficient age and maturity for his views to be taken into account. That finding created a discretion; it did not determine the outcome. The discretion was at large and required consideration of the strength and authenticity of the objections, parental influence, welfare considerations and the policy of prompt return.
5. The child’s objections carried weight, but were substantially affected by the father’s influence and the wrongful removal. His welfare also favoured decision-making by the Italian courts and restoration of a relationship with his mother. Although his education had suffered disruption in England and a further move might cause difficulty, those considerations did not outweigh the Convention policy and the wider welfare factors.
6. The court ordered the child’s return to Italy, accompanied by his father, during the English half-term week and no later than 26 October 2020.