(House of Lords; 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 father applied for summary return of the children to Zimbabwe under the Hague Convention. The court rejected the mother's defence of grave risk, concluding that this was a Zimbabwean case. The children had been born and raised in Zimbabwe, neither they nor their mother had any lawful right to remain in the UK and, although settlement had been established under Art 12, the judge held that he had a discretion for an immediate return, and exercised it. The Court of Appeal dismissed the mother's appeal.
The judge had had a discretion to return the children notwithstanding that settlement had been established: Art 12 envisaged that a settled child might nevertheless be returned within the Convention procedures. In cases in which a discretion arose from the terms of the Convention itself, the discretion was at large; the court was 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, however it was not the case that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not. 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, and that in itself was sufficient exceptionality. It was neither necessary nor desirable to import an additional gloss into the Convention. In settlement cases, it had to be borne in mind that the major objective of the Convention could not be achieved, in that a swift return to the country of origin could not be secured. It therefore could not be assumed that that country was the better forum for the resolution of the parental dispute; 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 might well, as in this case, include the child's objections as well as her integration in her new community. In this case the children should not be returned because of the delay; these children should not be made to suffer for the sake of general deterrence of the evil of child abduction world wide. To order separate representation in all cases, even in all child's objections cases, might be to send them the wrong messages, but it would not send the wrong messages in the very small number of cases in which settlement was argued under the second paragraph of article 12. These were the cases in which the separate point of view of the children was particularly important and should not be lost in the competing claims of the adults.