CHILDREN — Custody rights — Breach — Children habitually resident in Zimbabwe — Mother removing children to England — Father issuing proceedings under Hague Convention for their immediate return over two years later — Children settled in England and objecting to return — Whether case needing to be exceptional before court can exercise discretion to refuse to return — Child Abduction and Custody Act 1985 (c 60), Sch 1, arts 12, 13, 18

In re M and another (Minors) [2007] UKHL 55

HL(E): Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton under Heywood: 5 December 2007

The Hague Convention on the Civil Aspects of International Child Abduction 1980 had laid down the circumstances under which the return of a child who had been abducted from a contracting state could be refused, and it was neither necessary nor desirable that English courts should import an additional test of “exceptionality” into the exercise of discretion provided for by the Convention.

The House of Lords so held in allowing an appeal by the mother against the decision of the Court of Appeal (Thorpe, Longmore and Moore-Bick LJJ) [2007] EWCA Civ 992 dismissing her appeal from a decision of Roderic Wood J, sitting in the Family Division of the High Court of Justice [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 where the mother had removed them.

BARONESS HALE said that a view had crept in that "exceptional" was not merely a description, to be applied to the small number of exceptions under the Convention 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. There was 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 she need not be.

LORD HOPE delivered a concurring opinion. LORD RODGER delivered an opinion concurring in the result. LORD BINGHAM and LORD BROWN agreed.

Appearances: Henry Setright QC and Edward Devereux (Dawson Cornwell for Armitage Sykes, Huddersfield) for the mother; Marcus Scott-Manderson QC and David Williams (Reynolds Porter Chamberlain) for the father; Teertha Gupta intervening (Lawrence & Co, Maida Vale) for the children.

Reported by: B L Scully, barrister