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

Fecha: 12-Ago-2025

The 1980 Convention

The 1980 Convention

27.

The application falls to be determined by reference to the provisions of the Convention. As Article 1 makes clear, one of the objects of the Convention is:

"to secure the prompt return of children wrongfully removed to or retained in any Contracting State."

The wrongfulness of a removal or retention is governed by Article 3, which provides that:

"The removal or the retention of a child is to be considered wrongful where –

(a)

it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, or under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b)

at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in subparagraph (a) above, may arise in particular by operation of law or by reason of judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."

28.

The substantive obligation to return is provided for by Article 12 of the Convention. This provides that:

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."

29.

It is common ground that at all relevant times, both parents were exercising rights of custody in relation to B and that prior to his travel to the UK, B was habitually resident in New Zealand. For the father, Ms More O’Ferrall’s case is that although the father had agreed to the mother bringing B to the UK for the family wedding, it had been intended that they should only stay for a few weeks (although no return ticket had been purchased) and that by about early October there was a wrongful retention by the mother.

30.

For the mother, Ms Green takes the primary position that the Convention does not apply in this case as there was no wrongful retention of B. This is, she asserts, because the father had expressly agreed with the mother, before any retention had taken place, that B and the mother would not return to New Zealand. She also argues that even if there was a wrongful retention, the obligation to return does not arise because, as at the date of the wrongful retention, B had acquired an habitual residence in England and Wales.

31.

In the alternative, Ms Green also relies on two of the exceptions to the obligation to return provided for by Article 13 of the Convention:

This provides as follows:

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution, or other body which opposes its return establishes that:

(a)

the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b)

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."

32.

So, in summary, the mother relies upon four lines of defence:

(1)

There was no wrongful retention; alternatively

(2)

B was habitually resident in England at Wales at the date of retention; alternatively;

(3)

That the father has acquiesced in the retention; alternatively

(4)

That there is a grave risk that B’s return would expose him to physical or psychological harm or would otherwise place him in an intolerable situation.

I deal with each of these grounds in return.