W and E (Habitual Residence), Re
[2024] EWHC 2596 (Fam)
R v M (Hague Convention; Withdrawal of Application and Art. 16 (Parental Responsibility))
19 March 2024
[2024] EWHC 720 (Fam)
High Court
A stepfather tried to get his stepchildren back to New Zealand but changed his mind and the court let him withdraw his request. He also wanted the court to recognize his parental rights from New Zealand, but the court said there wasn't enough proof he had them and that the international rules didn't apply in this situation because they were given by a New Zealand court, not automatically by law. The court wanted to avoid a legal mess, ensuring the best interests of the children.
Key Facts
- •Hague Convention proceedings concerning two children, D (14) and K (9), initially brought by their stepfather, R (a New Zealand national), for their return to New Zealand.
- •Children were brought to England by their mother, M, without R's consent.
- •R sought permission to withdraw his application and recognition of parental responsibility he claims was granted in New Zealand under Article 16 of the 1996 Hague Convention.
- •Children's biological fathers, DF and KF, and maternal aunt, MA, were respondents.
- •Various parties acted pro bono.
Legal Principles
Permission to withdraw an application in Hague Convention proceedings requires court permission under FPR r 29.4.
FPR r 29.4
The test for withdrawing Hague Convention proceedings is the overriding objective in FPR r 1.1(2), focusing on expediency, proportionality, cost-saving, and efficient resource use. Welfare considerations are relevant under the ‘fairness’ aspect of the overriding objective.
FPR r 1.1(2)
Article 16 of the 1996 Hague Convention on parental responsibility must be interpreted holistically and progressively; parental responsibility acquired via judicial or administrative intervention doesn't automatically subsist after a change of habitual residence.
Article 16 of the 1996 Hague Convention
Foreign law must be proven; courts cannot assume foreign law mirrors domestic law.
Case law principles on foreign law
Under Article 16(3) of the 1996 Hague Convention, parental responsibility must be conferred by operation of law, not judicial or administrative intervention, to subsist after a change of habitual residence.
Article 16(3) of the 1996 Hague Convention and case law interpretations
Outcomes
Permission granted for R to withdraw his application for the children's summary return to New Zealand.
All parties consented, and withdrawal served the overriding objective of dealing with the case expeditiously and fairly.
R's application for recognition of New Zealand parental responsibility under Article 16 of the 1996 Hague Convention was dismissed.
Insufficient evidence demonstrated that the New Zealand court awarded R parental responsibility; Article 16(3) doesn't apply to judicially conferred parental responsibility; the court avoided creating a situation of dépeçage.