In re D (a child)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re D (a child)
 UKHL 51
LORD NICHOLLS OF BIRKENHEAD
LORD HOPE OF CRAIGHEAD
The fact that this suggestion was not pursued was taken by Professor Anton to indicate that, as the definition stood, taking the child out of the jurisdiction in those circumstances would not have been wrongful for the Convention's purposes.
BARONESS HALE OF RICHMOND
In that case, therefore, English concepts and English law rules about the meaning of acquiescence could have no direct relevance to the interpretation of the Convention. We must be equally prepared to resist projecting the view taken in English law of the rights of parents onto the Convention concepts as they apply to the laws of other member states which may take a different view.
The last sentence indicates that this is something other than the assertion or certificate of the central authority (cf the certificate as to the law of the requesting state which, under article 8, sometimes accompanies a request from one central authority to another). It is a determination by the authorities having the power within the requesting state to make authoritative decisions relating to rights over children (see Professor Pérez-Vera, op cit, para 86). The reference to "administrative authorities" caters for those states in which some decisions about children are entrusted to bodies which are more administrative than judicial in character (see ibid, para 44).
The foreign court is much better placed than the English to understand the true meaning and effect of its own laws in Convention terms. Only if its characterisation of the parent's rights is clearly out of line with the international understanding of the Convention's terms, as may well have been the case in Hunter v Murrow, should the court in the requested state decline to follow it.
The child himself
Although strictly this only applies to cases within the European Union (over half of the applications coming before the High Court), the principle is in my view of universal application and consistent with our international obligations under article 12 of the United Nations Convention on the Rights of the Child.. It applies, not only when a 'defence' under article 13 has been raised, but also in any case in which the court is being asked to apply Article 12 and direct the summary return of the child - in effect in every Hague Convention case. It erects a presumption that the child will be heard unless this appears inappropriate. Hearing the child is, as already stated, not to be confused with giving effect to his views.
Rights of access
LORD BROWN OF EATON-UNDER-HEYWOOD
In fact, we are told, no article 15 determination has ever been requested from a UK court although from time to time our courts do, it appears, make declarations purportedly under section 8 for all the world as if pursuant to an article 15 application. Holman J's grant of an ex parte application for such a declaration in In re H (Child Abduction) (Unmarried father: rights of custody)  EWHC 492 (Fam)  2 FLR 153 is a case in point: