Hague Convention & Discretion

In the January edition of the Law Society of Scotland's magazine , Kenneth McK Norrie, Professor of Law in the University of Strathclyde, looks at the latest Hague Child Abduction Convention in the UK and South Africa cases.

First off was the judgment handed down from the House of Lords, Re M and Another [2007] UKHL 55, featuring two children who were born and raised in Zimbabwe. Immediately following their abduction to the UK by their mother both children wanted to return, but by the time the father suceeded in making a Hague Convention application the children had been in the UK for more than two years. Baroness Hale held that the courts retained discretion and because the children were settled there was no obligation under the Convention to order their return to Zimbabwe. Further to this she advocated a child centred approach to be adopted in all Hague Convention cases.

The second case was Central Authority v Houwert [2007] SCA 88 (RSA). A South African mother and child had not returned to the Netherlands after a trip to South Africa and the court there ordered the return of the mother rather than the child. This later was recalled and a new order issued ordering the return of the child, although incidental orders which are not enforcable under the Hague Convention remained. Kenneth McK Norrie hopes "that courts in other jurisdictions resist the temptation to go so far beyond the scope of the Hague Convention in the orders they make in addition to the order for the return of the child."