M v F & Ors

Under Article 13 of the 1996 Hague Convention, lis pendens applies only while proceedings in the other Contracting State are actively under consideration. A dormant application does not indefinitely prevent the English court from determining the child’s welfare. In welfare proceedings, the child’s welfare remains paramount. The court may place a child with a parent where extended-family care, despite being materially adequate, perpetuates concealment of the child’s identity and risks emotional and psychological harm. Contact with relatives may require professional supervision or support where there is a tangible risk of abduction, coercive conduct or the transmission of a harmful narrative. A Hague Convention return order may be set aside after a fundamental change of circumstances makes its implementation impracticable.

The proceedings concerned the future welfare arrangements for a young child who had been removed from Portugal to England by his father and placed with paternal relatives. In earlier proceedings, the court found that the removal occurred without the mother’s consent, that she had been taken to Pakistan against her will, and that the father and his family had subjected her and the child to abusive and controlling conduct. A return order to Portugal had been made but suspended because the mother could not re-enter Portugal.

At this hearing the mother sought that the child live with her. The paternal relatives sought to retain care and wished to adopt him. A central preliminary issue was whether Portuguese proceedings prevented the English court from making final welfare orders under Article 13 of the 1996 Hague Convention.

1. Jurisdiction. Article 13 of the 1996 Hague Convention requires the requested measures in the other Contracting State to be “still under consideration”. On a plain and purposive reading, this requires active consideration, such as orders, directions, provision for the child’s participation or other steps showing that the court is progressing the matter towards determination. Portuguese proceedings had remained inactive and the Portuguese court was awaiting the outcome in England. Article 13 therefore did not prevent this court from determining the child’s long-term welfare.
2. Welfare. Applying Children Act 1989, section 1, the child’s welfare was paramount. Although the paternal relatives provided adequate physical care and the child was bonded to them, the greater risk was emotional and psychological harm from being raised away from his mother while being led to believe that the relatives were his parents. The court considered it clearly preferable for the child to be brought up by a parent and ordered that he live with the mother.
3. Contact and protective measures. A six-week period of stability in the mother’s care was directed, followed by monthly contact. Contact with the father was to be supervised and contact with the paternal relatives supported at a contact centre. The arrangements reflected the findings of domestic abuse, the tangible risk of abduction and concern about the narrative that might be conveyed to the child.
4. Return order and finalisation. The court set aside the return order under Family Procedure Rules 2010, rule 12.52A, relying on the approach in Re B (A Child) (Abduction: Article 13(b)) [2020] EWCA Civ 1057, [2021] 1 WLR 517. The fundamental change of circumstances included the mother’s inability to enter Portugal and the parties’ agreement that welfare decisions should be made in England. Wardship was discharged. The child arrangements order was initially interim under Article 12, with provision for it to become final after two months if the Portuguese authorities made no substantive contrary comments.

First-instance welfare and jurisdiction determination. The judgment records an earlier fact-finding judgment in the same litigation, published as Re S [2022] EWHC 214 (Fam), but that decision is excluded from the cited-case analysis as part of the same dispute.