|Judgments - In re M (FC) and another (FC) (Children) (FC)
HOUSE OF LORDS
 UKHL 55
on appeal from:  EWCA Civ 992
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re M (FC) and another (FC) (Children) (FC)
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Henry Setright QC
(Instructed by Dawson Cornwell)
Marcus Scott-Manderson QC
(Instructed by Reynolds Porter Chamberlain LLP)
(Instructed by Lawrence & Co)
21-22 NOVEMBER 2007
WEDNESDAY 5 DECEMBER 2007
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re M (FC) and another (FC) (Children) (FC)
 UKHL 55
LORD BINGHAM OF CORNHILL
LORD HOPE OF CRAIGHEAD
LORD RODGER OF EARLSFERRY
BARONESS HALE OF RICHMOND
The Convention and the issues
"reflect quite clearly the philosophy of the Convention in this regard. It can be defined as follows: the struggle against the great increase in international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests. Now, the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child." (para 24)
"The Convention recognises the need for certain exceptions to the general obligations assumed by States to secure the prompt return of children who have been unlawfully removed or retained. For the most part, these exceptions are only concrete illustrations of the overly vague principle whereby the interests of the child are stated to be the guiding criterion in this area." (para 25)
Hence the Convention is designed to protect the interests of children by securing their prompt return to the country from which they have wrongly been taken, but recognises some limited and precise circumstances when it will not be in their interests to do so.
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, 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.
As Professor Perez-Vera points out, article 12 and article 18 are complementary, despite their different character (para 106). Article 18 reads:
"The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time."
"Notwithstanding the provisions of the previous Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."
Unlike all the other articles quoted above, article 20 did not become part of United Kingdom law by virtue of section 1(2) and Schedule 1 to the 1985 Act. But in Re D (Abduction: Rights of Custody)  UKHL 51;  1 AC 619, para 65, this House pointed out that, under the Human Rights Act 1998, it is now unlawful for the court as a public authority to act incompatibly with the human rights and fundamental freedoms guaranteed by the European Convention on Human Rights. This applies in a Hague Convention case just as in any other. Article 20 has thus been given domestic effect by a different route. Hence a final issue is whether a return would be incompatible with the Convention rights.
Settlement and discretion
"...insofar as the return of the child is regarded as being in its interests, it is clear that after a child has become settled in its new environment, its return should take place only after an examination of the merits of the custody rights exercised over it - something which is outside the scope of the Convention." (para 107)
The rule while "perhaps arbitrary" was the "least bad" solution to the problem.
"This provision,...which imposes no duty, underlines the non-exhaustive and complementary nature of the Convention. In fact, it authorises the competent authorities to order the return of the child by invoking other provisions more favourable to the attainment of this end. This may happen particularly in the situations envisaged in the second paragraph of article 12, i.e. where, as a result of an application being made to the authority after more than one year has elapsed since the removal, the return of the child may be refused if it has become settled in its new social and family environment." (para 112)
"There is no doubt that the court in such a case is not bound to keep the child within the requested state. The question is: can it order the removal of the child in a summary proceeding without consideration of the merits of the dispute?
"In general, it is appropriate to emphasise that the exceptions in these two articles do not apply automatically, in that they do not invariably result in the child's retention; nevertheless, the very nature of these exceptions gives judges a discretion - and does not impose upon them a duty - to refuse to return a child in certain circumstances." (para 113)
Thus article 13 clearly envisages that the discretion may result in a decision to return within the Convention procedures. Those procedures, involving as they do the central authorities of each Contracting State and, in this country at least, favourable legal aid for the claimants, are different from those of the ordinary law. The same applies to article 20.
Discretion under the ordinary law and under the Convention
"For the exercise of a discretion under the Hague Convention requires the court to have due regard to the overriding objectives of the Convention whilst acknowledging the importance of the child's welfare (particularly in a case where the court has found settlement), whereas the consideration of the welfare of the child is paramount if the discretion is exercised in the context of our domestic law."
There has been a tendency in some quarters to take each of these approaches further than they should properly be taken, thus exaggerating the differences between them.
"The scheme of the Hague Convention is that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they have been wrongly removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return. That discretion must be exercised in the context of the approach of the Hague Convention - see In re A (Minors) (Abduction: Custody Rights)  Fam 106, 122E per Lord Donaldson of Lymington MR."
However, the judge also referred, under the heading of discretion, to Vigreux v Michel  EWCA Civ 630;  2 FLR 1180, in which "the Court of Appeal further emphasised the exceptional nature of the case that would be required to fall outside the return net." (para 53) He may well have had in mind the observation of Wall LJ at para 66:
"Following Re S, the first question I have to ask myself is, I think: what is it about this case which renders it exceptional and requires the court to exercise its discretion not to return PM to France?"
Earlier, when summarising the law relating to child's objections, the judge referred to the observations of the Court of Appeal in Klentzeris v Klentzeris  EWCA Civ 533, "for a recent reaffirmation that non-return is appropriate only in cases which fall into 'a most exceptional category', in that case the court basing its decision upon 'the extraordinary strength of the evidence of the CAFCASS officer'." (para 49)
"in deciding whether there are sufficient grounds for not returning a child, the court must take account of the underlying policy of the Convention with the result that, in order to justify exercising its discretion against returning the child, it must be satisfied that viewed overall the case can properly be regarded as exceptional."
"That leaves only the question of whether the objection of M is such that this is one of the 'exceptional' cases justifying the court in using its discretion to refuse to order an immediate return."
"'Kidnapping', like other kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to the prompt return of the child to his or her own country, but not the sacrifice of the child's welfare to some other principle of law."
"To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education...are all acts...which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted."
"I have considered the nature and seriousness of the wrongful removal, including the many layers of deception deployed by the mother in bringing about that wrongful removal, keeping the children at an address unknown to the father for many months; wrongly refusing to return the children to Zimbabwe when the father so requested ; that on the father's proposals the mother (and her new husband) could return to Zimbabwe with the children to care for them; and that even if the mother and or her new husband declined to accompany the children, they would be properly cared for in the home of their father; that their cultural and social roots (including their wider paternal and maternal family) are all still in Zimbabwe. I have also considered the children's objections." (para 121)
LORD BROWN OF EATON-UNDER-HEYWOOD