The Father v The Mother & Ors

Under Article 3(b) of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, rights of custody may be exercised even where the parent is not providing day-to-day care. A finding that rights were not exercised will be unusual, and the court should not generally investigate whether contact was exercised well or badly.

An objection under Article 13 requires a child to object, rather than merely express a preference, and to have attained sufficient age and maturity. If the gateway is satisfied, the court has a broad discretion. It must balance the child’s views, welfare considerations and Convention objectives. A strong, authentic and understandable objection may outweigh the policy of prompt return, particularly where return would separate the child from a primary carer or sibling and protective measures cannot mitigate the resulting psychological harm.

The father applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the summary return of his two children, A and Z, from England to Germany. The children had been habitually resident in Germany before their removal.

The mother argued that the removal was not wrongful because the father was not exercising rights of custody. Alternatively, she relied on A’s objection under Article 13 and on the grave-risk and intolerability defence under Article 13(b), stating that she would not return to Germany. The children’s guardian raised similar issues, including whether the father had rights of custody in respect of Z.

The central questions were whether the removal was wrongful, whether A objected to return with sufficient age and maturity, and whether returning either child would expose them to grave psychological harm or place them in an intolerable situation.

1. Wrongful removal. The father established, on the balance of probabilities, that he had rights of custody in respect of Z. The German order of 19 February 2024 stated that both parents had joint parental responsibility, had not been challenged, and was not contradicted by the mother’s case.
2. Although the father had not seen either child for about 18 months and was not exercising day-to-day care, he remained subject to orders concerning contact, continued to regard himself as their father, had previously played a meaningful role in their lives and had not abandoned any right to object to a change of residence. Applying the guidance in Re H (Minors) (Abduction: Custody Rights); Re S (Minors) (Abduction: Custody Rights) [1991] 2 AC 476 and J.S. v S.S. [2003] ScotCS 28, he was exercising, or would have exercised, rights of custody within Article 3(b). The removal was therefore wrongful.
3. A’s objection. A, aged 14, objected to returning to Germany and had sufficient maturity for her views to be taken into account. Her objection was strong, consistent, reasoned and objectively understandable. Following In re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as parties to appeal) [2015] EWCA Civ 26 and Re M [2007] 1 AC 619, the objection opened a discretion but did not determine the result. In exercising that discretion, A’s views, the likely severe effect on her mental health, the absence of a subsisting relationship with her father and the practical difficulty of enforcing return outweighed the Convention objectives.
4. Article 13(b). The court assessed the evidence on the balance of probabilities while recognising the summary nature of the process. It assumed the alleged risk at its highest and then considered whether effective protective measures could mitigate it, following E v D [2022] EWHC 1216 (Fam). The mother’s refusal to return was genuine, not manufactured to strengthen the defence, applying the approach in C v B [2019] EWHC 2593 (Fam). Her return would also risk worsening her mental health and impairing her ability to care for the children.
5. Returning Z alone would separate him from both his primary carer and A, his close sibling, and place him with an unfamiliar father, household and environment. Returning both children, even if the mother and A went too, would create intolerable uncertainty and substantial psychological harm. No protective measures could meaningfully mitigate those effects. The court also had regard to T v G [2024] EWHC 246 (Fam) and the limited interim nature of return identified in B v B [2014] EWHC 1804 (Fam).
6. The application for summary return of A and Z was refused. Further directions were to be addressed after judgment.