R v M (Hague Convention; Withdrawal of Application and Art. 16 (Parental Responsibility))

Permission is required to withdraw applications in proceedings under the 1980 and 1996 Hague Conventions where FPR r 29.4 applies. For a withdrawal application in 1980 Hague Convention return proceedings, the governing considerations are the overriding objective in FPR r 1.1(2), rather than the welfare principle in section 1(1) of the Children Act 1989. The court should ordinarily avoid compelling a party to continue litigation which they genuinely wish to end, while considering fairness, proportionality, expense, resources and any relevant welfare implications. Article 16(3) of the 1996 Hague Child Protection Convention preserves parental responsibility existing under the law of the child’s former habitual-residence State only where it was attributed by operation of law, without judicial or administrative intervention. It does not transport parental responsibility conferred by a court order.

The applicant, the step-father of two children, commenced 1980 Hague Convention proceedings seeking their summary return to New Zealand after their removal to England. During negotiations, the parties resolved the substantive arrangements and the applicant sought permission to withdraw the return application.

He also sought recognition under Article 16 of the 1996 Hague Child Protection Convention of rights said to have been conferred by a New Zealand court, alternatively indicating that an application under section 4A of the Children Act 1989 would be pursued. The issues were whether withdrawal should be permitted, whether the evidence established New Zealand parental responsibility, and whether Article 16(3) applied to court-conferred responsibility.

1. Withdrawal. Permission was granted to withdraw the 1980 Hague Convention return application. FPR r 29.4 applies to applications under the 1980 and 1996 Hague Conventions, and the court is not a rubber stamp even where withdrawal is agreed. However, because a 1980 Hague return application is not itself an application concerning the welfare or upbringing of a child, the section 1(1) welfare test under the Children Act 1989 does not govern withdrawal. The relevant test is the overriding objective in FPR r 1.1(2), including expedition, fairness, proportionality, expense and appropriate use of court resources (paras [42]-[48]).
2. Ordinarily, parties should not be compelled to bring or continue litigation which they do not wish to pursue. Costs consequences may follow, but those consequences do not justify forcing continuation where withdrawal is agreed and consistent with the overriding objective. The agreed arrangements for the children were approved as orders properly made in respect of children habitually resident in England and Wales (paras [46]-[50]).
3. Evidence of foreign parental responsibility. The court could not find that the New Zealand orders conferred parental responsibility. Foreign law must be proved by appropriate evidence. The court could not assume that New Zealand law had the same meaning as English law, take judicial notice of it, or treat an immigration-law expert’s answer as establishing parental responsibility. A properly noticed application under FPR r 12.71, supported by expert evidence and allowing the other parties to respond, should have been made (paras [51]-[59], [76]).
4. Article 16. Article 16 must be read holistically and progressively. Article 16(3) preserves parental responsibility existing under the law of the former habitual-residence State where it arose by operation of law without judicial or administrative intervention. It does not apply where the claimed responsibility was created by judicial or administrative intervention. The court therefore dismissed the application for recognition, without preventing a future application for parental responsibility under the ordinary Children Act 1989 route (paras [60]-[77]).

First-instance decision of the High Court (Family Division) on applications arising within 1980 Hague Convention proceedings. The judgment records no appeal or earlier merits decision in the same proceedings.