VW and XY (Children: Return Order to Romania), Re

Under the 1980 Hague Convention, a parent’s unilateral retention of children abroad is wrongful where it breaches the custody rights actually exercised by the other parent. A temporary agreement to travel does not establish consent to permanent retention. The respondent bears the burden of proving consent where wrongful retention is prima facie established.

The Article 13(2) child-objections exception requires more than a preference or wish. Even where the low gateway threshold is met, the discretion remains at large. The court must weigh the child’s views, welfare considerations and the Convention policy favouring prompt return.

The mother applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the return of her two children to Romania. The children had travelled to the United Kingdom with both parents for a temporary visit, but the father retained them there after separating from the mother.

The children had been habitually resident in Romania, where the mother had been their primary carer. The father relied on alleged consent, the mother’s failure immediately to contact UK authorities, and the older child’s expressed preference to remain in England. The issues were whether the retention was wrongful, whether consent had been established, and whether the Article 13(2) child-objections exception applied.

1. Return order. The retention on 22 July 2025 was wrongful. The children were habitually resident in Romania and the mother was exercising rights of custody. The father’s own custody rights did not justify unilateral retention in another country.
2. Consent. The mother had agreed only to a temporary visit. Her failure to contact UK authorities immediately did not establish consent, particularly in light of her credible explanation and her prompt contact with the Romanian authorities. The father failed to discharge the burden of proving consent, applying the approach in Re G (Abduction: Consent / Discretion) [2021] EWCA Civ 139.
3. Child objections. An objection is more than a preference or wish. The older child’s views were ambivalent and did not clearly amount to an objection. Even if the low gateway threshold had been satisfied, the discretion would have been exercised in favour of return. Limited weight was given to the child’s views because he was caught between his parents, lacked a realistic appreciation of remaining in England, and had been affected by the father’s conduct. Welfare considerations, family relationships and education in Romania, together with Convention policy, strongly favoured prompt return.
4. The court made a return order to Romania, directing that the children be handed to the mother swiftly on 20 December 2025. The father was not to accompany them. Issues concerning future care were left to the Romanian court.