P and Q (Rights of Custody, Settlement, Grave Risk of Harm, Objections), Re

In Hague Convention proceedings, the requested court must determine whether the applicant had rights of custody under the law of the state of habitual residence and whether those rights qualify as rights of custody under the Convention’s autonomous meaning. A merely potential right to apply to court, or rights of access rendered ineffective by a restraining order, does not amount to a right of custody.

Where the Article 13(b) defence is raised, the court evaluates the evidence on the balance of probabilities, assumes the alleged risk at its highest on reasoned and reasonable assumptions, and then examines concrete protective measures. A child’s objection is a factual gateway question. Once established, the discretion is at large and must take account of the child’s authentic views, welfare considerations and Convention policy.

The father applied under the Child Abduction and Custody Act 1985 for the summary return of P and Q to the USA under the 1980 Hague Convention. The children had been removed from Colorado to England in September 2020. It was common ground that Colorado was their state of habitual residence immediately before removal.

The mother relied on the alleged absence of wrongful removal, settlement under Article 12, grave risk under Article 13(b), and the children’s objections under Article 13. The central issues were whether the father had rights of custody under Colorado law and the Convention, and, alternatively, whether any Convention exception justified refusing return.

1. Application dismissed. The father failed to establish that he had rights of custody at the date of removal. The removal was therefore not wrongful under Article 3 and no obligation to return arose under Article 12.
2. The court applied the two-stage approach in Hunter v Murrow and NT v LT: first identifying the rights enjoyed under the law of the requesting state, and then deciding whether those rights were rights of custody under the autonomous law of the Convention. The expert evidence established that the Colorado protection order gave the mother sole decision-making responsibility for all major decisions, including relocation. The father had no right to determine residence or prevent removal. His potential ability to apply to court was insufficient, consistently with Re D and Re J.
3. The undefined parenting time recorded in the protection order did not amount to rights of custody. It was rendered nugatory by the mandatory restraining order prohibiting contact with the children. The Colorado court was not itself an institution holding rights of custody because its proceedings had concluded when the final protection order was made.
4. Alternatively, the settlement defence would have failed. Despite the children’s lengthy residence in England, repeated moves, concealment and continuing insecurity meant that the necessary physical, emotional and psychological elements of settlement were not established.
5. The Article 13(b) defence would also have been established on the evidence. Without making findings of fact, the court assumed the serious allegations at their highest and found a grave risk of psychological harm on return. Protective measures, including mirror orders, anonymity arrangements, financial assistance and undertakings, could theoretically have mitigated that risk.
6. Both children established the Article 13 objection gateway. Their objections were genuine, strongly held and sufficiently mature to require consideration. The resulting discretion was at large. Weighing their authentic objections, welfare information, the length of residence in England, the reduced force of prompt-return policy after delay, and the absence of an apparent welfare benefit from return, the court would have refused summary return.

First-instance Hague Convention proceedings in the High Court (Family Division). No appellate history was stated.