House of Lords Published December 6, 2007
In re M and Another (Minors)
Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, and Lord Brown of Eaton-under-Heywood
Speeches December 5, 2007

The circumstances under which a court should refuse to order the return of a child who had been abducted from a state subscribing to the Hague Convention on the Civil Aspects of International Child Abduction 1980 had been laid down under the Convention itself and it was neither necessary nor desirable for English courts to add an additional test of “exceptionality” over and above the requirements of the Convention.

The House of Lords so held in allowing an appeal by the mother against the dismissal by the Court of Appeal (Lord Justice Thorpe, Lord Justice Longmore and Lord Justice Moore Bick) ([2007] EWCA Civ 992) of her appeal from Mr Justice Roderic Wood, in the Family Division ([2007] EWHC 1820 (Fam)), on the application of the father, that their two children should be returned forthwith to Zimbabwe, where the father was resident and from which the mother had removed them.

Article 12 of the Convention provides: “Where a child has been wrongfully removed or retained ... and, at the date of the commencement of the proceedings ... 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 ... The ... authority, even where the proceedings have been commenced after the expiration of the period of one year ... shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”

Mr Henry Setright, QC and Mr Edward Devereux for the mother; Mr Marcus Scott Manderson, QC and Mr David Williams for the father; Mr Teertha Gupta, intervening, for the children.

LADY HALE said that the issue was as to the scope and application of the exceptions to the duty to return abducted children under the Convention and in particular the proper approach to the exercise of discretion once one or more of those exceptions had been established.

The instant proceedings had been begun more than two years after the children had been removed. The trial judge had found that the children were now settled in their new environment. Hence there was no duty under article 12 to return them.

That gave rise to two important issues: (i) once children were settled, was there a discretion nevertheless to return them under the Convention or must their return be sought and ordered under some other jurisdiction; and (ii) if there was such a discretion, on what principles should it be exercised? Her Ladyship had reached the conclusion, not without considerable hesitation, that article 12 did envisage that a settled child might nevertheless be returned within the Convention procedures. The words “shall ... unless” left the matter open.

That would be consistent with all the other exceptions to the rule of return. It would avoid the separate and perhaps unfounded need for proceedings in the unusual event that summary return would be appropriate in a settlement case.

It recognised the flexibility in the concept of settlement, which might arise in a wide variety of circumstances and to very different degrees. It acknowledged that late application for return might be the result of active concealment of where the child had gone. It left the court with all options open.

Furthermore, the difference between return under the Convention or under some other jurisdiction was by no means as great as was sometimes assumed. That depended upon the scope of the discretion to be exercised both within and without the Convention procedures.

When it came to the actual exercise of his discretion, the judge had clearly indicated that he considered that he had to find something exceptional in the case, over and above the Convention grounds of opposition which he had found established, before he could refuse to order a return.

There was little doubt that a view had crept in that “exceptional” was not merely a description, to be applied to the small number of exceptions in which the court had power to refuse to order a return, but also an additional test to be applied, after a ground of opposition had been made out, to the exercise of the court’s discretion.

Her Ladyship had no doubt at all that it was wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return might be refused were themselves exceptions to the general rule. That in itself was sufficient exceptionality. It was neither necessary nor desirable to import an additional gloss into the Convention.

The Convention itself had defined when a child had to be returned and when s/he need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child would vary enormously.

The extent to which it would be appropriate to investigate welfare considerations would also vary. But the further away one got from the speedy return envisaged by the Convention, the less weighty general Convention considerations had to be.

Lord Hope delivered a concurring opinion. Lord Rodger delivered an opinion concurring in the result. Lord Bingham and Lord Brown agreed.

Solicitors: Dawson Cornwell for Armitage Sykes, Huddersfield; Reynolds Porter Chamberlain; Lawrence & Co, Maida Vale

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