FC v MC (Hague Convention 1980: Effect of Order in Requesting State)

In a Hague Convention 1980 return application, a later order in the requesting state that the child should live in the requested state does not retrospectively cure an earlier wrongful removal or retention. The mandatory return obligation therefore remains legally relevant, but the court must also exercise proportionate case-management powers. Where a return order would have no practical utility because the child could lawfully return to the requested state, and the requesting court is actively determining residence, the proceedings may be stayed or summarily concluded. A conditional return order is inappropriate where future residence, welfare circumstances and Convention defences cannot presently be assessed.

The father applied under the Hague Convention 1980 for the summary return of his four-year-old daughter from England to Poland. The mother relied on disputes concerning habitual residence, consent or acquiescence, and the grave-risk defence under article 13(b), none of which had yet been determined.

During the Polish proceedings, the Polish court made interim measures providing that the child should reside with the mother in the United Kingdom for the duration of those proceedings. The final welfare decision remained open, and an appeal against the interim order was contemplated. The preliminary issue was whether the English court should proceed with the return application, determine selected issues, dismiss it, or stay it.

1. Legal effect of the Polish order. A wrongful removal or retention is an event in time. A later order in the requesting state that the child should live with the travelling parent in the requested state does not retrospectively make the earlier conduct lawful or non-wrongful. The Hague Convention 1980 uses mandatory language: where removal or retention is wrongful, the child shall be returned unless an exception applies.
2. Recognition, comity and utility. The Polish interim residence measure had to be recognised under article 23(1) of the Hague Convention 1996. A forthwith return order would cut across that order and comity required respect for it. It would also have no utility, since the mother could return to England with the child without committing a further wrongful removal. The court therefore had to balance the Convention’s requirement for swift determination against the waste and disproportionality of deciding issues that might become academic.
3. Alternatives rejected. A conditional return order was inappropriate because the Polish decision might not be made for several months and the article 13(b) circumstances could change. Determining habitual residence or wrongful removal immediately would also risk an academic exercise, particularly given the child’s periods in both countries and disputes about the parties’ agreements.
4. Order. The application was stayed for three months, with liberty to restore on three days’ notice following a change of circumstances. If no application was made within that period, it would stand dismissed without a further hearing. The court noted that such cases should arise infrequently and that the Hague Convention 1980 is not an instrument for enforcing foreign welfare orders.