A Father v A Mother

Under the Hague Convention 1980, a child’s objection to return is a factual gateway. The court must then exercise a broad discretion, taking account of the child’s views, welfare and the Convention’s objectives.

Where proceedings have been delayed and the child has become settled in the requested state, the policy favouring prompt return may carry reduced weight. The court must assess the child’s present circumstances, the reasons for the delay and the practical consequences of return. A return order is inappropriate where it would disrupt an established life without advancing the Convention’s purpose. Protective undertakings cannot address an objection directed to the disruption of returning to the former country of habitual residence.

The father sought a summary return order under the Hague Convention 1980 after the mother brought K from Lithuania to England in September 2021. Hague proceedings were issued in July 2022 but then stayed for nearly 18 months while Lithuanian proceedings and appeals continued.

The Lithuanian Supreme Court ultimately left the mother’s relocation application unexamined, while confirming that K should live with her. By the final hearing, K had lived in England for about two and a half years, was settled there and strongly opposed returning to Lithuania. The issues were whether K had established an objection under Art 13, whether Art 13(b) was engaged, and how the resulting discretion should be exercised.

1. Child’s objection. The court applied the straightforward gateway under Art 13. K’s views were strong, consistent and authentically her own. She understood that a return would involve returning to Lithuania with her mother, rather than being separated from her. Given her age and maturity, it was appropriate to take account of those views.
2. Article 13(b). The defence has a high threshold and focuses on the risk to the child on return. Delay and settlement may, in an appropriate case, contribute to an intolerable situation. The court was not satisfied that K’s circumstances independently met that threshold, particularly since she would return with her mother. The issue therefore did not need to determine the outcome.
3. Discretion. The discretion was at large. It required a case-specific assessment of Convention policy and welfare. Relevant considerations included the desirability of swift return, the benefits of decisions being made in the home country, comity and deterrence, the reasons why the discretion arose, K’s settled life in England, the strength and maturity of her objections, and the likely effect of return on her relationship with her father.
4. The substantial delay had reduced the significance of the Convention’s prompt-return objectives. K’s habitual residence and settled life were now in England, and a return would create a fresh disruption and potentially place her in temporary limbo rather than restore the status quo contemplated by the Convention.
5. The father’s concerns about the mother’s alcohol use raised an underlying welfare issue which could not properly be determined in this summary process absent compelling evidence that the Lithuanian welfare determination was wrong. That issue belonged in subsequent welfare or relocation proceedings.
6. Protective measures would not materially address K’s objection, which was to returning from her settled life in England to Lithuania. Welfare considerations therefore prevailed. The court declined to make a return order and determined the Hague proceedings.