G v H (Hague Convention: Wrongful Removal)

A removal which was wrongful when it occurred remains wrongful for the purposes of Article 3 of the 1980 Hague Convention. A subsequent order by the court of the child’s former habitual residence may make a later return lawful, or render a return order futile, but it does not retrospectively validate the earlier removal. The court may nevertheless stay a summary-return application where an immediate return order would serve no practical purpose, the foreign proceedings remain at an interim stage, and there is a realistic prospect that later welfare orders may alter the position. Any stay must be time-limited and subject to liberty to restore.

F, aged eight, had been habitually resident in Portugal with his father after the family moved there from England. On 22 January 2023 his mother removed him to England without the father’s consent, accepting that the removal was wrongful under Article 3. The father applied for summary return.

On 3 May 2023 the Portuguese court made provisional arrangements placing F in his mother’s care in England pending further orders. The Portuguese court confirmed that it retained jurisdiction over F’s welfare, but no final welfare hearing had taken place. The issues were the effect of that order, whether it retrospectively rendered the removal lawful, and whether the English court should finally determine or stay the return application.

1. The Portuguese order was an interim order that F should reside with his mother in England until further order. The Portuguese court remained seised of his welfare and would consider evidence from England and Wales.

2. The admitted removal on 22 January 2023 remained wrongful under Article 3 of the 1980 Hague Convention. Removal and retention are distinct events fixed in time. A later order cannot retrospectively change the legal character of a removal that was wrongful when made. This conclusion was supported by Re H, Re S (Minors) (Abduction: Custody Rights) and the reasoning in DL v EL.

3. The court distinguished the approach in T & J (Children) (Re) (Abduction: Recognition of Foreign Judgment), where recognition of the foreign order under Brussels II bis avoided a return order. Brussels II bis no longer applied, and Article 50 of the 1996 Hague Convention preserved the application of the 1980 Convention.

4. Articles 3 and 12 ordinarily require return unless an Article 13 defence is established, subject to the court’s discretion. However, an immediate return order would be futile because F could lawfully be returned straight to England under the Portuguese order. Proportionality and proper allocation of judicial resources therefore justified refraining from an immediate final return determination.

5. The application was stayed, with liberty to apply to restore on notice, including if the Portuguese court requested assistance or made an order concerning F’s custody or return. If no restoration application was made by 12 September 2024, the application would stand dismissed. The court declined to determine the Article 13 defences at that stage, since they should ordinarily be assessed close to any potential return.

First-instance decision. The judgment records earlier case-management hearings before Moor J and Sir Jonathan Cohen, but no appeal from a prior decision.