JC v DF

Under the 1980 Hague Convention, inchoate rights of custody may arise where a person has assumed sustained primary care of children in circumstances where formal parental responsibility is absent. A wrongful removal or retention engages the Convention where those rights would have been exercised but for the removal or retention.

The grave-risk exception requires harm reaching the level of an intolerable situation. A taking parent cannot automatically defeat that exception by refusing to return, but the conduct creating the situation is relevant to the court’s discretion. A child’s preference to remain with a parent is not necessarily an objection to return under Article 13(2). The Convention’s summary-return purpose remains central where the home court is the proper forum to decide long-term welfare arrangements.

The applicant grandmother sought the summary return to Portugal of two children whom their father had taken to England after their mother’s death. The children had lived with the grandmother in Portugal for almost a year, while the father lived in England. Portuguese proceedings concerning residence and parental responsibility were continuing.

The court considered whether the grandmother had rights of custody when the children were removed, whether the removal and subsequent retention were wrongful, and whether the father had established the psychological-harm, intolerability or child-objection exceptions. It also considered the court’s discretion and, alternatively, the inherent jurisdiction.

1. Wrongful removal and retention. The grandmother had inchoate rights of custody when the children were removed. She had undertaken parental responsibility, acted as their primary carer for months, and the surviving parent had effectively delegated care and abandoned the children. The children’s home, possessions and school arrangements remained connected with her. The removal was therefore wrongful under Article 3. By 28 July 2021, both the grandmother and the Portuguese court had rights of custody, and the continued retention in England was also wrongful.
2. Article 13(1)(b). The father had not proved a grave risk of psychological harm or an intolerable situation. The children’s settlement in England, disruption to schooling and possible separation from their father did not reach the requisite threshold. The court was entitled to assess the reality of the father’s stated refusal to return and concluded that he was likely to accompany the children. “Grave risk” concerns the seriousness of the impact and is equivalent in threshold to an intolerable situation.
3. Manufactured risk and discretion. A parent’s conduct in creating the circumstances relied upon cannot prevent the Article 13(1)(b) gateway from opening if grave risk is otherwise proved. That conduct is, however, a powerful factor in the discretionary balance.
4. Article 13(2). The older child was sufficiently mature for his views to be considered, but he preferred to remain with his father rather than objectively objecting to return to Portugal. A preference to remain in the care of a particular person is distinct from an objection to return to the requested country. In any event, the court would have exercised its discretion in favour of return.
5. Disposition. The Portuguese court was the appropriate forum to determine the children’s interim and long-term arrangements. The Article 12 presumption was not displaced. The court ordered their summary return to Portugal after the end of the English school term, with departure within 48 hours of the last day of term.