[2025] EWHC 795 (Fam)

The Hague Conference on Private International Law (commonly referred to by the acronym ‘HCCH’) is an organisation which boasts a distinguished history dating back to the nineteenth century. It convenes regular gatherings or ‘sessions’, typically at four-yearly intervals. During the 1970s HCCH became concerned to address the harm to children caused by international child abduction. The problem was magnifying as result of the increased potential for international travel witnessed during the second half of the twentieth century. The harmful effects of this unwelcome trend were already well-recognised in this jurisdiction. As Buckley LJ famously put it in In re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250:

The Abduction Convention, as it is sometimes known, was concluded on 25 October 1980 at the Hague Conference’s fourteenth session. As is apparent from Professor Eliza Pérez Vera’s Explanatory Report, its conclusion was a remarkable feat of diplomacy and draftsmanship. To achieve unanimity among those initial states who first signed up to it, some of whose legal systems will have differed substantially, compromises were inevitably necessary.

The Convention’s goal was to ameliorate the harm caused by international child abduction. It was intended to serve both as a deterrent and a means for redress for left behind parents whose children had been unilaterally removed or retained. Ultimately, it aimed to promote the interests of children, both globally and in the individual cases which might come before the court. In Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, Baroness Hale recorded that each of those two objectives was a primary consideration. The Convention’s aims and objectives find expression in its preamble and in Article 1. Importantly, the preamble records the general principle that ‘the interests of children are of paramount importance in matters relating to their custody’.

Other than in the preamble, the interests of the child do not find direct expression in the Convention. It was framed so as to create a presumption in favour of a returning a child to the State of habitual residence. As Professor Pérez Vera explains (see paragraphs 20 to 26 of her report, which I am paraphrasing), it was necessary to mitigate the judicial instinct to investigate a child’s welfare before making such a decision. The delay created by such an investigation might well be inimical to the welfare of an abducted child, for the reasons articulated by Buckley LJ. Additionally, as the Professor put it at paragraph 22:

“…it must not be forgotten that it is by invoking 'the best interests of the child that internal jurisdictions have in the past often finally awarded the custody in question to the person who wrongfully removed or retained the child. It can happen that such a decision is the most just, but we cannot ignore the fact that recourse by internal authorities to such a notion involves the risk of their ex- pressing particular cultural, social etc. attitudes which themselves derive from a given national community and thus basically imposing their own subjective value judgments upon the national community from which the child has recently been snatched.”

In order to engage the machinery of the Convention, it is necessary for the applicant to demonstrate that the child has been subject to a wrongful removal or retention (Article 3). That proposition is not disputed in this case. It is common ground that the on 2 August 2023, the children were habitually resident in Ukraine and that F held and was exercising parental rights classified under the Convention as ‘rights of custody’. M’s act of removing the children from the jurisdiction, without consultation, was unquestionably a breach of those rights.

Where, as here, a child has been the subject of a wrongful removal or retention, Article 12 gives rise to a duty upon the State to which the child has been taken (the Requested State) to return the child to the State where they were habitually resident before the wrongful removal or retention (the Requesting State).

The extent of the duty to return under Article 12 depends upon how quickly the application for return has been made. Where it is lodged less than a year after the date of the wrongful act, the courts of the Requested State are obliged to order the child’s return ‘forthwith’, subject only to the exceptions in Article 13. The position is different where the application is only made after a year has elapsed. In those circumstances, the second paragraph of Article 12 provides that the authorities in the Requested State ‘shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.’ Unless the child is ‘settled’, the general duty to return remains, but as Baroness Hale pointed out in In re M and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55 (‘Re M’), at paragraph 14, there is no longer a requirement for the return to take place ‘forthwith’. The exceptions in Article 13 also apply to cases where applications are made after a year.

This is a case, as I have already recorded, where the application for return was made some 16 months after the date of the removal. M asserts that the children are ‘now settled in their new environment’. She also relies upon an exception to return created by Article 13(b), which provides that the court is not obliged to order a return where the person opposing a return establishes that ‘there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’.

At one stage, M also claimed that F had either consented to or acquiesced in the removal, the establishment of which would trigger further exceptions to return under Article 13(a). These arguments have rightly been abandoned and I shall say no more about them.