RS and TU (Children: Return Order to Zimbabwe), Re

In Convention return proceedings, the requested state determines whether removal was wrongful, but should attach considerable weight to an authoritative determination by the state of habitual residence unless there is a compelling reason to reject it.

The Article 13(b) defence requires a grave risk of physical or psychological harm, or an intolerable situation. A court must assess disputed allegations in concrete terms and consider whether protective measures can address any established risk.

Under Article 13(2), a child’s strong wish to remain is not necessarily an objection. If the gateway is met, the discretion remains at large and must balance the child’s views, welfare and Convention policy.

The father applied for the return of his two daughters to Zimbabwe under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention. The children, Zimbabwean nationals, had been habitually resident in Zimbabwe and were brought to the United Kingdom by their mother without the father’s knowledge or consent.

The issues were whether the removal breached custody rights under Article 3; whether the Article 13(b) grave-risk or Article 13(2) child-objections defences were established; and, if the removal was not wrongful, whether a summary return order should be made under the inherent jurisdiction.

1. Adjournment. The application for an adjournment to enable the mother to obtain pro bono representation was refused. Fairness was the essential touchstone. Equality of arms did not require every party to be legally represented. Fairness could be secured through the conduct of the hearing, including a measured pace, issue-by-issue submissions and assistance from a McKenzie Friend. Delay would have been materially prejudicial to the children and contrary to the Convention’s expectation of prompt determination.
2. Wrongful removal. The removal was wrongful under Article 3. The father bore the burden of proof. The relevant date was the date of removal. The court retained the ultimate responsibility for deciding whether the removal was wrongful, but, applying Re D, attached considerable weight to the Zimbabwean authorities’ determination that the parents shared custody rights and that unilateral removal breached those rights. No compelling reason existed to reject that determination. The father was also exercising custody rights when the children were removed.
3. Article 13(b). The allegations concerning the paternal grandmother and maid were generalised and unsupported by the children’s reported views. They fell well below the high threshold of grave risk or intolerability. In any event, the court had no reason to doubt that Zimbabwean authorities were equally capable of protecting children.
4. Article 13(2). The children expressed a strong wish to remain in the United Kingdom, but that did not necessarily amount to an objection to return. The court nevertheless considered the discretion on the assumption that the gateway was met. The children’s ages, maturity and reasons for their views limited the weight attached to them. Welfare and Convention policy strongly favoured return so that future care arrangements could be determined in Zimbabwe.
5. The Article 12 settlement defence was unavailable because less than one year had elapsed. The inherent jurisdiction therefore did not arise. A return order was made, to be implemented in time for the children to start the January 2026 school term in Zimbabwe. The Zimbabwean authorities were left to resolve disputed care arrangements.