FD25P00086 - [2025] EWHC 2190 (Fam)

If the court's discretion arises it is to be exercised in accordance with the principles set out in In re M and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55 [2008] 1 AC 1288. In that case Baroness Hale stated as follows:

“43 My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child’s rights and welfare…

44 That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention…The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.” (emphasis added)

Baroness Hale then made specific comment as to the exercise of the general discretion in settlement cases:

“47 In settlement cases, it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer “hot pursuit” cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child’s objections as well as her integration in her new community.” (emphasis added)

In this case, assuming removal to have been wrongful and the settlement defence to be established, given the length of time that has passed since the removal, the context of a settlement case and T’s level of integration into an English environment, the resumed relationship he now has with his father and the uncertain prospects for a continuing relationship with his mother should he return to Zimbabwe, I decline to exercise my discretion to return T to Zimbabwe.