COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Wallwork (sitting as Deputy High Court Judge)
Principal Registry of the Family Division
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTCE PITCHFORD
LADY JUSTICE BLACK
| O O D
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Mr Hames (instructed by Hodge Jones & Allen LLP) for the Respondent
Hearing dates : Friday 4th February 2011
Crown Copyright ©
Lady Justice Black :
"17. In conclusion: the mother has established on paper and in her evidence that over the last 18 months the children were settled in Nigeria. This triggers the court's discretion to allow her to retain the children with her in Nigeria. I do not propose to exercise that discretion in her favour. These are very young children and are of an age where I have no doubt that they are able to adapt more readily than older children who may have established deeper attachments and networks to family, friends and environment. In the circumstances therefore the children should be returned to the USA for the American courts to determine any respective applications of the parties based on welfare principles."
" ….I have no doubt at all that it is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the Convention."
 But there remains a distinction between the exercise of discretion under the Hague Convention and the exercise of discretion in wrongful removal or retention cases falling outside the Convention. In non-Convention cases the child's welfare may well be better served by a prompt return to the country from which she was wrongly removed; but that will be because of the particular circumstances of her case, understood in the light of the general understanding of the harm which wrongful removal can do, summed up in the well-known words of Buckley LJ in Re L (Minors) (Wardship: Jurisdiction)  1 WLR 250, at 264:
'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.'
 In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another's judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states.
 My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para  above, save for the word 'overriding' if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.
 That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.
 In settlement cases, it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer 'hot pursuit' cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child's objections as well as her integration in her new community.
 All this is merely to illustrate that the policy of the Convention does not yield identical results in all cases, and has to be weighed together with the circumstances which produced the exception and such pointers as there are towards the welfare of the particular child. The Convention itself contains a simple, sensible and carefully thought out balance between various considerations, all aimed at serving the interests of children by deterring and where appropriate remedying international child abduction. Further elaboration with additional tests and checklists is not required.
"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." [my brackets, indicating the word that Baroness Hale would have omitted]
"It may be that this is a Pyrrhic victory for the father. On the face of the papers and in light of my findings, the mother appears to have a strong case on welfare grounds, providing suitable orders are also made in Nigeria to protect the father's interest. These final observations, of course, can form no part of the ruling of this court and I simply make the observation in the hope that it may assist the parties in reaching agreement."
"would have more far reaching consequences and adverse impact than in the case of an older and less sensitive child able to comprehend a sudden departure from one routine and community and the prospect of the next"
"should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matter she should take into account."
"….For my part, I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?"
"….this point was barely pursued within the hearing before me and vigorously denied by the mother. The allegation appeared to be an emotive attempt to suggest that the children were in danger."
"I understand that the Plaintiff was liaising with the Bureau of Consular affairs to seek recognition of an American Court Order in Nigeria. When he found out that the children had been moved to London, he approached the Central Authority in England."
"after that little pressure by the US embassy, she fleed Nigeria to London" [sic]
He also supplied misleading information in the form about contact, in relation to which he said,
"At first when she took them to Nigeria, she said she was going to do female circumcision, first of all my wife has given an impression that she want my daughters be circumcised, I refused, now I can't talk to my children" [sic].
"[H]e did not appraise the mother of the children's whereabouts and he retained them for the period of one week. This caused their mother anxiety and led to the involvement of the police. The children were eventually returned to their mother on 30th November and she alleges they were suffering from scabies and generally in poor health."
"This was a flagrant abduction by a Mother who has completely ignored the rights of the Father to be an involved parent. She uprooted them from a secure and stable environment and took them to a country where living standards are incomparably lower and the physical environment harsher. The children are still young enough to be able to adapt to a change back to USA, their home country. There are school places there. There is a way of life with which they are familiar."
i) The mother did not conceal the whereabouts of the children from the father at any time and has promoted contact between father and children.
ii) The father did not seek the summary return of the children through the courts of Nigeria or the USA. Such attempts as he made to obtain the assistance of the courts either involved dishonesty (in the case of the US) or were withdrawn (in the case of Nigeria).
iii) The father has behaved in a variety of oppressive and abusive ways towards the mother and her anxiety about his possible conduct towards her would be heightened if she were to be forced to return to the US and deprived of the support of her family in Nigeria. She would feel she was returning to an insecure environment where she would be vulnerable to further harassment by the father. This in turn would be likely to impact adversely on her ability to care for the children.
iv) The Nigerian courts have been seised of this matter already in November 2009, albeit transiently, and are the proper forum for the determination of any dispute over the children.
Lord Justice Pitchford
Lord Justice Wilson: