Re R (A Child) (Wrongful Retention: Child’s Objections: Discretionary Return)
[2023] EWHC 560 (Fam)
G v H (Hague Convention: Wrongful Removal)
12 September 2023
[2023] EWHC 2351 (Fam)
High Court
Mom took her son from Portugal to England without Dad's permission. A judge in England said taking the son was wrong, but won't send him back *yet* because a Portuguese court gave Mom temporary custody in England. The English judge will wait to see what happens in Portugal before deciding if the son should return.
Key Facts
- •8-year-old F was wrongfully removed from Portugal to England by his mother (H) on 22 January 2023, without the father's (G) consent.
- •H subsequently applied to a Portuguese court, which issued a provisional order on 3 May 2023 granting her custody of F in England.
- •G applied to the English High Court for F's summary return to Portugal under the 1980 Hague Convention.
- •The English court sought clarification from the Portuguese Hague Network Judge regarding the meaning and effect of the Portuguese order.
Legal Principles
The 1980 Hague Convention aims to secure the prompt return of wrongfully removed children and ensure respect for custody rights.
1980 Hague Convention
A wrongful removal under Article 3 of the Hague Convention occurs when a child is removed in breach of custody rights actually exercised or would have been exercised but for the removal.
1980 Hague Convention
A subsequent court order in the child's habitual residence state cannot retrospectively render a previously wrongful removal lawful.
Case law (discussed in the judgment, referencing DL v EL and T & J)
Outcomes
The English High Court found that F's removal was wrongful under Article 3 of the 1980 Hague Convention.
The court rejected the mother's argument that the Portuguese order retrospectively legalized the removal, citing established case law and policy considerations. A return order would be futile given the Portuguese interim order.
The father's application for summary return was stayed, not dismissed.
A return order would be futile at this time due to the Portuguese interim order, but the court acknowledged the possibility of future changes to that order. Staying the proceedings allows for a later application to restore the case if circumstances change. This avoids wasting court resources on a currently futile action.