F v L & Ors

Under the Hague Convention, express rights of access do not become rights of custody merely because they involve regular contact. The relevant domestic law must first be identified, followed by the autonomous Convention question whether the rights include control over the child’s residence. A custodial parent may relocate a child unless domestic law or an order expressly or implicitly restricts that power.

Settlement under Article 12 is assessed holistically. Physical, emotional and psychological integration are relevant, but concealment and severance of a parental relationship are important factors rather than automatic bars. Acquiescence depends primarily on the wronged parent’s actual state of mind. A child’s clear preference is insufficient for the Article 13 objections defence unless it amounts to an objection to returning to the country of habitual residence.

The father sought the summary return of his 11-year-old son to Zimbabwe under the Hague Convention after the mother brought the child to England in October 2022. The mother accepted that the child had been habitually resident in Zimbabwe and that Zimbabwe had primary jurisdiction.

She relied on Articles 3, 12, 13(a), 13(b) and 20. The father argued that his access rights were rights of custody, that the defences were not made out, and that the court should exercise its discretion to return the child. He also made an oral application for summary return under the inherent jurisdiction.

The central issues were whether the father possessed rights of custody, and, if so, whether the Convention defences or the court’s discretion prevented return.

1. Article 3. The father’s Zimbabwean court order granted custody to the mother and access to the father. On the preferred expert evidence, Zimbabwean law did not give an access-only parent a right to be consulted before the child was removed from the jurisdiction. The domestic-law question therefore failed. In any event, under the autonomous Convention meaning, the father’s rights were access rights and did not include a veto over the child’s removal. Applying Hunter v Murrow, Re D and the distinction in Article 5, the removal was not wrongful under Article 3.
2. Settlement. Assuming Article 3 had been satisfied, the child was settled in England for Article 12 purposes. Settlement was assessed holistically and included physical and psychological integration. The concealment, change of identity and interruption of the father-child relationship were highly relevant, but not determinative.
3. Acquiescence. The defence failed. The father’s subjective state of mind was that he continued to seek the child’s return. His delay and uncertainty about the child’s whereabouts did not clearly and unequivocally demonstrate acquiescence.
4. Grave risk. The mother’s allegations and likely refusal to return to Zimbabwe did not establish a grave risk of physical or psychological harm or an intolerable situation. The evidence was not sufficiently serious or consistent.
5. Child’s objections. The child was of an age and maturity at which his views could be considered, but his wish to remain in England was a preference rather than an objection to return to Zimbabwe.
6. Article 20. The defence failed because Article 20 had not been incorporated into domestic law through the Child Abduction and Custody Act 1985. There was also no evidential basis for finding a breach of Article 8 ECHR.
7. Discretion and inherent jurisdiction. Assuming a discretion to return arose, it was declined in light of the delay, settlement and integration in England. The court declined to determine the father’s ad hoc inherent-jurisdiction application because the evidence required for a welfare comparison and assessment of protective arrangements was absent. The Hague Convention application was dismissed. The expert-costs order was varied so that CAFCASS was not required to contribute.

First-instance decision of the High Court (Family Division). No appellate history was stated.