About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Wednesday, 5 December 2007

House of Lords decides not to return children to Zimbabwe

As announced on the main website, the House of Lords' decision in Re M & anor [2007] UKHL 55 has now been published. During a contact visit, mother removed 2 girls aged 13 & 10 from Zimbabwe where they had been living with their father (both parents were from Zimbabwe) and took them to the UK without telling father where they were for some time. He for his part took nearly 2 years to issue proceedings for their return. Under the Hague Convention, where proceedings are not begun for over a year, there is a duty to return the children, but not forthwith, unless the children are settled in a new environment or a parent has acquiesced or there is a grave risk to the children's physical or psychological welfare or otherwise the child would be placed in an intolerable situation or the child objects to being returned and is of an age and maturity where their wishes & feelings should be determinative or there would be a breach of the Human Rights Convention if the child were returned. The court considered the competing authorities on the proper approach when a child is found to be settled in a new environment and whether this took the case outside the Hague Convention altogether. The House of Lords concluded that a settled child might nonetheless be returned to the country of origin within Convention procedures, but that the court could exercise a discretion both as to whether to order summary return or whether to carry out a full investigation before doing so, and it was not right to import an additional test of exceptional circumstances into the Convention articles which already provided a limited number of exceptions. On the particular facts of the case, the children no longer wanted to return (they had done so at first but the father had failed to act on their wishes), they feared a further relocation to Zambia, they were settled in the UK and if they returned to Zimbabwe they would not be able to regain access to the UK. The court did not accept that the regime in Zimbabwe was such that any child would be at risk there, but found the children's fears on this score to be understandable. The court commented that settlement cases were the most child-centric and approved the practice of the separate representation of the children in such cases.

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