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House of Lords allow appeal in Zimbabwe Hague Convention 1980 proceedings

In an important decision, the House of Lords have allowed a Zimbabwean mother's appeal against orders made by the Court of Appeal (Thorpe, Longmore and Moore-Bick LJJ) dismissing an appeal from a decision of Mr Justice Roderic Wood requiring the immediate return to Zimbabwe of two children (aged 13 and 10) pursuant to the Hague Convention 1980.

Baroness Hale, giving the leading speech, concluded, "with considerable hesitation", that where (as in this case) a child had been found to be settled for the purposes of Article 12, a discretion did arise so that the court could consider whether or not to return a child to the requesting State. In addition, she was in "no doubt at all" that it was "wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention", as the Court of Appeal and first instance Judges had done in a number of recent cases. When a court came to exercise its discretion, it 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 wider considerations of the child's rights and welfare." Indeed, "the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be."

Furthermore, she observed that where a child's objection is raised, only two conditions needed to be met for such an exception to be brought into play: "first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views."

Finally, Baroness Hale stated that whilst "children must not be given an exaggerated impression of the relevance and importance of their views in child abduction cases", in the small number of cases where settlement is argued, there were powerful arguments to suggest that separate representation should be ordered for the children.

Henry Setright QC and Edward Devereux acted for the successful appellant mother.

The full text of the judgment is available on Family Law Week -

6 December 2007