No: FD25P00282 - [2025] EWHC 2144 (Fam)

Given that I am satisfied that the mother has made out her defence under Art 13(a) I must consider whether to exercise my discretion to nevertheless return B to New Zealand. Guidance on the exercise of this discretion was provided by Baroness Hale in Re M [2007] UKHL 55; [2008] 1 AC 1288 at [40]:

“[39] Thus there is always a choice to be made between summary return and a further investigation. There is also a choice to be made as to the depth into which the judge will go in investigating the merits of the case before making that choice. One size does not fit all. The judge may well find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that factor and to all the other relevant factors, some of which are canvassed in In re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80 will vary enormously from case to case. No doubt, for example, in cases involving Hague Convention countries the differences in the legal systems and principles of law of the two countries will be much less significant than they might be in cases which fall outside the Convention altogether.

…

“[42] In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another's judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states.

[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. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para 32 above, save for the word “overriding” if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.

[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. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. 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.”

Although predating Re M, Ms Green also took me to the guidance formulated by the Court of Appeal in Re W (Abduction: Acquiescence) [1993] 2 FLR 211 (referred to by the Court of Appeal in Re S (Abduction: Acquiescence) [1998] 2 FLR 115) as to the factors to be considered in the context of the acquiescence defence which include (but are not limited to):

The purpose of the Convention is clear. It is to secure the prompt return of abducted children and to deter abduction in the first place. A return under the Convention also means that substantive issues about the welfare of the child can be considered by the “home” court, which may be best placed to do this.

I am not satisfied that the mother had definitely planned to retain B here when she travelled to England in September 2024; had she done I consider it likely that she would have taken additional steps (for example taking a record of her UK National Insurance number with her). Nonetheless I consider that the possibility of remaining here was within her mind. In any event, as I have found, within a short period of time she unilaterally decided that any return was to be on her own terms and not in accordance with the agreement previously reached with the father. The purpose of the Convention therefore points towards me ordering a return notwithstanding what I have concluded about acquiescence.

That said, this is a case where there has been significant delay. For the first five months following the wrongful retention, the father took no steps to assert his Convention rights to seek a return, and instead either stood by or actively offered encouragement as the mother took steps to build a life for herself and B in England. I have in mind, in particular, the fact that the father said nothing in response to the mother’s communication that she was resigning her job in New Zealand and instead offered encouragement in her applications for a new job in the UK. He also took no steps to object to B starting pre-school.

I am extremely conscious that B is only three years old and that he has now spent a significant and crucial part of his life in the UK. I have no doubt that that he has put down strong roots during the eleven months that he has now been in this country, near to his maternal family. In this context, given B’s age, the delay by the father in bringing proceedings under the Convention does, in my view, significantly diminish the weight that I would otherwise be justified in giving to the purposes of the Convention.

When looked at from a welfare perspective, the factors do not all point in one direction. If I permit B to remain in the UK this will have an obvious impact on his relationship with his father. I recognise that the father will face significant challenges in visiting the UK to spend time with B. Ms More O’Ferrall suggested that this would effectively be an impossibility. I do not accept this; the father is in employment and I do not consider that travel to the UK for visits would be impossible. However, I recognise that this presents real difficulties for him.

The father has also expressed concern that the mother has being denying him contact with B. The reasons for the difficulties that have been experienced are disputed, and I do not accept that the mother is deliberately trying to prevent the father from maintaining contact with B. Both parents should be left in no doubt that if I permit B to remain in this jurisdiction, it is essential for B’s welfare that they both abide by the contact arrangements that are agreed (or in default of agreement are ordered by the court) and I will expect them both to do so.

I recognise also that the father will face difficulties in participating in any future court proceedings in England, although these should not be overstated as he has participated effectively in the proceedings before me.

On the other hand, I must also recognise that if I order a return the mother and B will not be returning to their previous home. This has been let out and is, I understand, likely to be repossessed by the mortgagee in the near future. They will be living in a different city; in a different part of New Zealand to their former home. The mother would need to support herself by working whilst also caring for B and would do so without the support of the maternal family that she currently enjoys in England. B would be removed from his current environment and the stability of his current life.

I consider that this is a difficult case and the competing arguments for and against a return are finely balanced. Having taken all matters into account, I have decided that the appropriate course is for me to refuse to order a return in this case. B has now lived nearly one third of his life in England and has achieved (in part through the acquiescence of the father) a measure of stability at an important and formative time for him. On balance, and notwithstanding the purposes of the Convention and the other factors that point towards a return I have concluded that B’s welfare is best served by maintaining that stability, rather than ordering a return with the inevitable uncertainty over his future that such a step would bring.

I therefore dismiss this application.

That is my judgment.