FD25P00086 - [2025] EWHC 2190 (Fam)

In Re M (Abduction: Acquiescence) [1996] 1 FLR 315 the couple met in 1988, the mother became pregnant in 1989 and that year the parties married in Greece. The child was born on 23 April 1990 but the couple then separated on 7 December 1990. On 17 February 1992 the mother applied for a provisional order for custody and maintenance for the child. The father did not appear and was not represented, and the Greek court made findings and an order committing the child’s physical custody to her on a provisional basis. On 28 July 1993 she left Greece without any notice to the father of her intention to do so. He quickly discovered her flight and her whereabouts and telephone calls followed during which she made it clear that she had no intention of returning. The father issued proceedings for the child’s summary return on 19 October 1994. Under a month later, on 9 November 1994, a decree nisi was pronounced in England, the mother’s petition for divorce not being defended.

Thorpe J (as he then was) identified the main issue as whether or not the mother’s action on 30 June 1993 amounted to a wrongful removal of the child contrary to Article 3. The other defences (of settlement under Article 12, acquiescence under Article 13(a), and of a grave risk of physical or psychological harm under Article 13(b)) did not strictly arise unless that issue was determined in the father’s favour.

The judge found that whether removal had been wrongful turned on whether the mother’s exclusive rights and duties to the care of the person defined by Article 1518 of the Greek Civil Code as including the determination of his place of residence extended to the selection of a place of residence outside the jurisdiction of the Greek court. Having received both written and oral evidence from two experts in Greek law, the judge held that the onus was on the father to prove that the removal had been wrongful according to Greek law, and he had failed to discharge that burden, for the point was as yet undecided in Greek law, the authorities relied upon by the father’s expert pre-dating the entry into force of Article 1518.

In Hunter v Murrow [2005] EWCA Civ 976 [2005] 2 FLR 1119, a four year old child was removed from New Zealand to London by his mother without his father’s knowledge or consent. Both parents were New Zealand citizens. Their son was conceived during a relationship which ended in March 2000. He was born on 22 November 2000. The father continued to have regular contact with his son by agreement until just before 21 September 2004, when the mother flew to England with her son. Two days later the mother rang the father and told him of their whereabouts. The following month she advised the father that she may continue living in London and was seeking employment. On 29 October 2004 the father made an application in New Zealand for the return of his son under the Hague Convention. On 15 November 2004 an originating summons was issued in London seeking a return order under the Hague Convention.

On 16 December 2024 by consent a request was made via the Claimant to the New Zealand court pursuant to Article 15 to the New Zealand court for a determination of (i) his rights in relation to the child and (ii) whether the removal had been wrongful within the meaning of Articles 3 and 5. The New Zealand court found that the father did have rights of custody, even though his access did not extend to overnight care of the child, his regular access was a defined and committed relationship which constituted substantial intermittent possession and care of the child.

Thorpe LJ stated that the crux of the case was that New Zealand had rejected the approach in England and Wales and was ready to categorise simple contact arrangements as constituting “rights of custody”: para 22. His Lordship went on to opine that the Article 15 declaration was not binding on the requesting authority or the courts of that country but was no more than persuasive. The courts of the requesting state will accept as much or as little of the judgment as they choose: para 27. In determining whether or not the father exercised rights of custody immediately prior to his son’s removal the court applied not English law but the English perception of the autonomous law of the Hague Convention: para 29.

Dyson LJ (as he then was) stated that there were two relevant questions (paras 46 – 7):

Dyson LJ stated (at paras 49 – 50) that in many cases the domestic question is satisfactorily resolved on the basis of expert evidence, or in reliance on a certificate or affidavit under Article 8(f) emanating from a Central Authority or other competent authority of the State of the child’s habitual residence, or from a qualified person, concerning the relevant law of that State; or by taking notice directly of the law of, and judicial or administrative decisions, formally recognised or not in the state of habitual residence of the child, without recourse to the specific procedures for the proof of that law or the recognition of foreign decisions which would otherwise be applicable: see Article 14. But it can also be resolved by a determination pursuant to Article 15: a request for a determination that the removal was wrongful within the meaning of Article 3 can include a request for a determination of the domestic rights (if any) of the applicant in relation to the child. The decision of a court of competent jurisdiction is obviously more authoritative on the domestic law question than the opinion of an expert.

Dyson LJ went on to point out (at para 57) that the English approach to the interpretation of rights of custody and rights of access has been to emphasise the difference between them, citing Re W; Re B (Child Abduction: Unmarried Father) [1998] 2 FLR 146 per Hale LJ:

“Thus a deliberate distinction is drawn between rights of custody and rights of access… Rights of custody are protected under Art 12 by the remedy of speedy return to the country where the children were habitually resident before they were removed. Rights of access are protected under Art 21 by remedies to organise and secure their effective exercise in the country where the children are now living.”

Lloyd LJ agreed that the father’s rights were, at the highest, simple contact arrangements. He explained this conclusion by reference to two principles: (1) where a father had contact rights but was also entitled to a veto over the removal of the child from the jurisdiction, except for short periods, had rights of custody, in Hague Convention terms, because the right of veto amounted to a right to determine the residence of the child: C v C (Abduction: Rights of Custody) [1989] 1 WLR 654; but on the other hand (2) if the applicant has only the right to be informed about proposals for removal that does not amount to a right of custody: Re V-B (Abduction: Custody Rights) [1999] 2 FLR 192.

In Re D (Abduction: Rights of Custody) [2006] UKHL 51 [2007] 1 FLR 961 a one year old child remained with the mother after divorce. When the child was 4 years old the mother removed the child from Romania to England without the father’s knowledge or consent. The father sought the child’s return under the Hague Convention. A request for determination of whether removal had been wrongful was sought by the English court from the Romanian Court. The Romanian Court ruled that the removal had not been wrongful, because the father’s rights had not amounted to rights of custody. Joint custody had ended on divorce, and thereafter the parent awarded custody on divorce (in this case the mother) exercised parental rights and fulfilled parental duties, while the parent without custody had a right to personal contact with the child, and to watch over, but not to direct, the child’s upbringing. None of the rights granted to the non-custodial parent on divorce involved a right of veto or to decide the child’s place of residence.

Baroness Hale held that a “right of veto” (the right to object to a child’s removal from the jurisdiction) amounts to “rights of custody” within Article 3, but a potential right of veto (for instance a right to go to court and obtain an order) does not. To hold otherwise would remove the distinction between rights of custody and rights of access: paras 37 – 8.

The Applicant relies on an opinion dated 20 June 2025 from the Ministry of Justice, Legal and Parliamentary Affairs, and Articles 8(f) and 14 of the Hague Convention. The opinion notes that the mother had been granted custody and the father access rights by court order, and asserts as a matter of domestic law:

The mother relied on the written and oral evidence of the single joint expert in Zimbabwe law, Mr. Davison Kanokanga, a registered legal practitioner and solicitor of the High Court of Zimbabwe, and senior and founding partner of Kanokanga & Partners. Mr. Kanokanga provided an initial report dated 18 June 2025 and then responded to questions posed by the father in an additional report dated 3 July 2025, and gave answers to questions agreed by the parties and amended by the court on 11 July 2025. He also gave brief oral evidence on 11 July 2025.

Mr. Kanokanga pointed out that neither case relied upon by the Ministry of Justice supported the proposition that access rights gave the right to consultation before taking the child out of the jurisdiction.

In Kumalo v Kumalo the parents remained married, and enjoyed joint custody and guardianship over their children. Omitted from the Ministry of Justice’s opinion were the words which followed the reference to the right of consultation:

“In our law, both parents of children born to a marriage have the right to determine the place of residence of the children of the marriage. Thus, the consent of each parent has to be sought before the children leave the jurisdiction and it is only when consent has been unreasonable [sic] withheld that leave of this court, as upper guardian of all minors, is sought.”

In Peacock v Steyn the parents were unmarried but it was found as a matter of fact that they had entered into an agreement to share custody, with the applicant father taking them to South Africa to enrol them in boarding school there, only returning to Zimbabwe for holidays. It was held that the respondent could not unilaterally vary or terminate that arrangement. It did not matter that, under Zimbabwe law, the father of a child born outside marriage had no inherent right over such child. The father was already enjoying rights of custody, and the retention of the children was wrongful under Article 3 of the Convention. Nor did the judgment provide any support for the proposition that access rights alone would give a parent the right to be consulted before removal, failing which removal or retention would be wrongful in Zimbabwe law. The case did not concern access rights alone, and no such statement was made in the judgment.

Mr. Kanokanga stated that the father had been granted access rights while the mother had custody rights. Further:

Mr. Kanokanga maintained this position in oral evidence.

He also stated that the laws of Zimbabwe stated that a parent who is entitled to access has a duty and right to follow his/her children at his/her expense, and that a custodian parent is not entitled to place impediments in the way of the non-custodian parent’s access rights. He relied upon the case of Samudzimu v Ngwenya (2008) 2 ZLR 228 (H). That case was a dispute over interim custody where the parties had agreed a consent order which permitted the mother to move herself elsewhere within Zimbabwe as long as it did not impede the father’s rights of access to the children. That allegation was not found proved on the facts. There was no statement that, failing such an express clause in an order, one is implied. There was no such express clause precluding the placing of impediments in the way of access in this case, so I find that this argument is not relevant here.

In summary, pursuant to the court order, the father had express rights of access, not express rights of custody. Where there was a difference between the parties was whether Zimbabwean law nevertheless gave the father a right to consultation before T was removed from the jurisdiction.

Turning to the two relevant questions, what rights did the father have in Zimbabwean law? It was not suggested that there was any legislative basis for giving parents with rights of access the power to prevent the child from leaving the jurisdiction. The remaining dispute pertained to the common law of Zimbabwe. Insofar as they differ, I prefer the view of the single joint expert, Mr. Kanokanga, to the opinion provided by the Ministry of Justice, for the case law cited by the former was authority for the propositions advanced, unlike that cited by the Ministry of Justice, as set out above. Thus, even as a matter of Zimbabwean law, the father does not give a right to be consulted before the T could be taken out of the jurisdiction.

Thus, this application does not fall within Article 3, on the first question alone.

The second question is whether those rights are properly to be characterised as “rights of custody” within the meaning of Articles 3 and 5(b) of the Hague Convention. This is a matter of international law and depends on the application of the autonomous meaning of the phrase “rights of custody”. As a matter of Hague Convention law, there is a clear distinction made between rights of custody and rights of access within Article 5.

My conclusion is that the rights enjoyed by the father do not constitute “rights of custody” within the Hague Convention. I am bound by Hunter v Murrow (at para 57) which emphasised the powerful domestic jurisprudence distinguishing between rights of access and rights of custody (see paras 43, supra). Further, I do not construe the father’s rights as extending to a power of veto against the child leaving the jurisdiction of Zimbabwe. There is no express requirement in the order granting the parents their rights to ensure that T remains in the jurisdiction, nor is there any implicit requirement in Hague Convention jurisprudence to do so.

Following Re D, the father’s rights do not amount to rights of custody.

Accordingly, this application must fail.

Although not strictly necessary, I will now briefly consider the other defences relied upon by the mother, on the assumption that the father can satisfy Article 3.