Judge says family litigation 'stymied any meaningful focus' on children

A High Court judge in the family division has criticised ‘litigious’ Hague Convention proceedings which ‘effectively suspended proper cooperation between the parties’.

Mr Justice Peel said the determination of the Hague application in Z v Z had shifted the focus on the children’s welfare interests in a case centred on a father, identified as F, who applied for the return of his three children from England to British Colombia, Canada.

The children’s mother, referred to as M in the 15-page judgment, opposed the application. The family moved to the UK for medical care after M was diagnosed with stage 3C colorectal cancer. F returned to Canada in May 2022 and applied in July 2022 under the 1980 Hague Convention for the return of the three children.

The judge said: ‘As is so often the way in Hague Convention cases, these proceedings have been far from summary in nature. Further, the parties have inevitably ventilated matters which are sensitive, disputatious, and divisive.

‘Again, as so often in these case, the very fact of litigious Hague Convention proceedings has been inimical to the children’s interests and enormously stressful for the parties. It has effectively suspended proper cooperation between the parties and a focus on the children’s welfare interests until determination of the Hague application which is essentially jurisdictional in that it concerns where future litigation should take place.’

He expressed his fear that Hague Convention proceedings ‘run the risk of adding to the delay, acrimony and attendant harmful consequences for children’ unless a way is found to ensure cases take place promptly, acknowledging that ‘the six week requirement for final determination is rarely achievable’.

Peel added: ‘In this case, it seemed clear to me that at its heart is a concerned father who has not seen his children since February and is anxious that his relationship with them is suffering. Their mother told me she is supportive of the children spending time with him in Canada and England, yet the Hague Convention proceedings have stymied any meaningful focus on the issues which matter most to the children.’

The return order application was refused on three grounds including that wrongful retention was not established and habitual residence at all relevant times lay in England. It means that decisions to the children’s future welfare will be made in England rather than in Canada.

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