FC v MC (Hague Convention 1980: Effect of Order in Requesting State) [2026] EWHC 1516 (Fam)

[2026] EWHC 1516 (Fam)Case No FD26P00104Date 18/06/2026
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Before
MR JUSTICE POOLEFCThe ApplicantMCThe RespondentFC v MC (Hague Convention 1980: Effect of Order in Requesting State)
Between
FCClaimantMC (Hague Convention 1980: Effect of Order in Requesting State)DefendantHearing Hearing date: 3 June 2026
Kingsleigh Viollet (instructed by IMD Solicitors) for the Applicant
Michael Gration KC and Tadhgh Barwell O’Connor (instructed by Sills & Betteridge Solicitors) for the Respondent
JUDGMENT
This judgment was handed down remotely at 10.30am on 18 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Introduction

[1]The issue addressed in this judgment is how the court should proceed on an application for summary return of a child under the Hague Convention 1980 when there is a court order in the requesting state that the child should live with the mother in the requested state.[2]The Hague Convention 1980 (“HC1980”) Art 1 provides that the objects of the Convention are:
“a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
These objects are explained in paragraphs 12 to 14 of the 1980 Hague Convention – Good Practice Guide – Part VI – Article 13(1)(b):
“12. The Convention is based on the following related concepts. i. Removal or retention is wrongful when in breach of rights of custody 13. The first underlying concept is that the removal or retention of a child is wrongful when in breach of rights of custody. A parent who shares or does not have rights of custody should therefore seek and obtain consent from any other person – usually the other parent –, institution or body having rights of custody or, if this is not possible, permission from the court, before removing the child to, or retaining him or her in, another State. ii. Wrongful removal or retention is harmful to the child 14. The second underlying concept is that the wrongful removal or retention of a child is prejudicial to the child’s welfare and that, save for the limited exceptions provided for in the Convention, it will be in the best interests of the child to return to the State of habitual residence.”
[3]Art 3 of the HC 1980 provides:
“The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
[4]It is well-established that removal and retention are distinct acts. Where a child has been wrongfully removed, or retained away, from the state of their habitual residence immediately before the removal or retention then, unless a year or more has passed from the date of wrongful removal or retention, Art 12 provides that “the authority concerned shall order the return of the child forthwith. By Art 13, exceptions are set out providing the court of the requested state with a discretion not to return the child if certain conditions are met. As Mostyn J emphasised in B v B [2014] EWHC 1804 (Fam):
“there are very few exceptions [to the requirement to return] and the exceptions that do exist have to be interpreted very narrowly in order that the central premise of the Convention is not fatally undermined.”
[5]In Re D (A Child)(Abduction: Right of Custody) [2006] UKHL 41, [2007] 1 AC 619 Baroness Hale held at paragraph 48 that:
“The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their ‘home’, but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed.”
[6]How does an order in the requesting state that the child shall live in the requested state affect the seemingly mandatory terms of the HC 1980? Assuming that a child has been wrongfully removed from the state of their habitual residence, and none of the exceptions under the HC1980 apply, must the court of the requested state order the return of the child forthwith notwithstanding an order in the requesting state that the child shall live in the requesting state? At first sight, it would seem to be pointless to do so: the parent returning the child could land at the appropriate airport in the requesting state and then lawfully board another plane back to the requested state. Their journey back would not be a wrongful removal. However, 6.1. Removal and retention are events in time which cannot retrospectively be changed. 6.2. A later order by a court in the requesting state that the child should live with the travelling parent does not retrospectively render a wrongful removal or retention no longer wrongful. 6.3. The wording of HC1980 is in mandatory terms. If the removal or retention was wrongful the child “shall” be returned (unless an exception applies in which case he or she “may” be returned).[7]In T & J (children, Re (Abduction: Recognition of Foreign Judgment) [2006] EWHC 1472 Sir Mark Potter P considered a mother’s application for a return under HC 1980 in circumstances where the court in the requesting state, Spain, had made an interim order pending the final hearing of divorce proceedings, that the appropriate place for the children to reside was in England with the father. Sir Mark Potter P resorted to the then relevant provisions of Brussels IIb regarding the recognition and enforcement of judgments given in another member state but, following the UK’s departure from the EU that is no longer an option for this court. In doing so, he registered his surprise that it should be necessary to resort to Brussels IIb:
“35. The primary rationale underlying the Hague Convention is to ensure that decisions as to the welfare of children, and questions where and with which parent they should reside, are taken in the country of the child’s habitual residence. In this case, as a result of proceedings initiated by the mother in Spain, by the time the matter comes before this court for decision as to whether an order for the return of the child should be granted under the terms of the Hague Convention, those purposes have been achieved, in the sense there has been a full and careful hearing of the issue by a Spanish court in possession of all the relevant facts going to its welfare decision, as well as the full circumstances of the father’s removal of the children. The Spanish court has specifically vested interim custody in the father on the basis that the children should continue to reside in England with the father as their main carer, and with appropriate and beneficial educational arrangements, pending a full and final hearing. 36. By virtue of the relevant Spanish law, that interim custody order is not capable of appeal and will remain in place till the resolution of the divorce and/ or separation proceedings. As uncontested expert evidence placed before me has made clear, since an order for the return of the children to Spain is no more than that (i.e. it does not involve any award of care or custody), in the event of such an order being made, so far as the Spanish court is concerned the father would have the right to return with the children to England without any breach of the letter or spirit of the Spanish court order. 37. Recitation of these facts is sufficient to make clear that, if, as is submitted on behalf of the mother, this court is obliged to return the children as requested by the mother, it would defeat rather than assist the overall purpose of the Hague Convention as I have stated it. Fortunately, by application of the provisions of Brussels II b, such a result is avoided.”
[8]Sir Mark Potter continued:
“56. Article 1 of the Hague Convention provides: “The objects of the present Convention are (a) to secure the prompt return of children wrongfully removed to or retained in any contracting state; and (b) to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states.”
As I have already observed, this reflects an underlying belief that it is in the interests of children that parents or others should not abduct them from one jurisdiction to another, but that any decision relating to their custody is best decided in the jurisdiction in which they have hitherto been resident. 57. In the ordinary case, in order to achieve object (b) of Article 1, it is necessary to make an order to bring about object (a) i.e. the two objects operate in harmony. In the unusual circumstances of this case, namely where immediately following removal of the child, the mother commenced custody proceedings in Spain, the adverse result of which was determined before the hearing of her Hague Convention application, an order made in pursuit of object (a) would conflict with object (b). Common sense would suggest that it should not be necessary to resort to the provisions of Brussels II b in order to resolve this conflict, but to adopt instead an appropriate internal construction the of provisions of the Hague Convention in order to do so. That could readily be done, as it seems to me, were it not for the established Convention jurisprudence that removal and retention are mutually exclusive concepts, each being distinct events occurring on a specific occasion and that it is impossible for them to overlap or be treated as an ongoing process: see Re H, Re S (Minors) (Abduction: Custody Rights) [1991] 2 AC 476 at 498-499. Were it not for the rigid compartmentalisation of the two concepts, it might be feasible, and would certainly be desirable in a case of this kind, for the courts to treat the decision of the Spanish court as having intervened to validate or excuse what would otherwise be a wrongful removal and/ or retention when considered in terms of the Convention. 58. It was no doubt this difficulty which, in the light of her concession as to wrongful removal, led to Miss Meyer’s reliance upon the provisions of Brussels II b as her necessary route to success. Despite the difficulties which obviously lie in the development of a Convention argument along the lines to which I have referred, I would not wish to close the door to such an argument if similar circumstances should arise in a case where the country of the child’s habitual residence is a signatory of the Hague Convention but is not a member of the European Union.[9]In In the matter of D (Children)(Child Abduction: Practice) [2016] EWHC 504 (Fam) Sir James Munby P gave permission to the applicant to withdraw his HC 1980 application for a return order, it being agreed that it had “no utility” due to orders made in the jurisdiction of the requesting state.[10]In F v M and N (Abduction: Acquiescence: Settlement) [2008] EWHC 1525 (Fam), Black J considered a case where there were ongoing child welfare proceedings in a Polish court. She made a return order “to the extent that is necessary to enable the Polish court to determine her future and to do so with the minimum of delay.” In that case it does not appear that any order had been made by the Polish court that the child should remain in England pending the conclusion of the proceedings there.[11]Finally, and with humility given the calibre of judges already cited, I refer to my own decision in G v H (Hague Convention: Wrongful Removal) [2023] EWHC 2351 (Fam). In that case the applicant father was the left behind parent in Portugal and the child was living with the mother in England. The mother admitted that her removal of the child from Portugal had been wrongful within the meaning of Art 3 of HC 1980 but on her subsequent application, the Portuguese court had made a “provisional” order that the child should be entrusted to her care and live with her. I rejected the submission that the later court order rendered the earlier wrongful removal lawful (or not wrongful) but found that a return order would be futile. The court had to manage cases having regard to proportionality and an appropriate allocation of resources. The Portuguese court was seised of the child’s welfare and it would be a waste of the English court’s time and resources to make a return order, if appropriate, whilst the child could, under the Portuguese order, remain in England.[12]Turning now to the facts of the present case which, in the circumstances, I can state briefly: 12.1. The child with whom I am concerned is C who is four years old. The applicant is her father, FC, the respondent her mother, MC. Both parents are Polish nationals who met in 2018 and lived together in Poland. C was born in 2021. Her parents separated in 2024. 12.2. The parties entered into an agreement under which C lived in England with MC from May 2025. From October 2025 she lived in Poland with FC. MC says that FC retained C in Poland. FC maintains that the earlier agreement was time limited and that C simply returned to Poland to live with him. In November 2025, FC and then, a day later, MC applied to the Polish court for orders in relation to the arrangements and responsibilities for C. 12.3. The parties came to another agreement allowing MC to take C on a holiday in Poland for a few days, but on or about 9 February 2026 she removed C from Poland and brought her to England where they have both remained. 12.4. FC applied for a return order under the HC 1980 (the application herein). Following directions and protective orders including a Port Alert and an order that MC deliver up her passport and C’s passport to her solicitors, and a pre-trial review, FC’s application was listed for a final hearing before me on 3 and 4 June 2026. 12.5. On 23 April 2026, FC gave evidence in Poland. I then gave directions t a Pre-Trial Review to allow for MC to be given her passport in order to travel to Poland to attend a hearing there. On 22 May 2026, she and several supportive witnesses gave evidence and the Polish court made an order granting MC’s request for interim measures such that for the duration of the proceedings the place of residence of C shall be “in the place of the residence” of MC “in the United Kingdom”.[13]MC defends FC’s application for a return order on several grounds: habitual residence, that the removal was not wrongful due to consent or acquiescence, and Art 13(b), grave risk of harm. No determinations have been made on any of those issues. This judgment concerns a preliminary issue. At the outset of the hearing before me on 3 June 2026, Mr Gration KC and Mr Barwell O’Connor for MC submitted that the court should either dismiss FC’s application or stay it for a limited period of three months. For the father, Mr Violett submitted that the court should(i) proceed with the application and consider making a conditional return order, the condition being that the Polish court decides that C should live with FC in Poland; alternatively(ii) proceed to determine issues of habitual residence and/or wrongful removal and then adjourn remaining issues; further alternatively(iii) if a stay is to be ordered, stay the application for twelve months to allow sufficient time for the Polish proceedings to conclude.[14]Swiftly prepared translations of the proceedings before the Polish Court on 22 May 2026 and of the court’s reasoning for its decision on interim residence were helpfully obtained shortly before the hearing. In its reasoning, as translated, the court said:
“Taking into account the age of the child, who is currently 4.5 years old, and the fact that since 9 February 2026 she has in fact been in the care of her mother in England, where she is functioning properly — as shown both by the testimony of the witnesses heard and by the temporary decision of the Court in England — the Court found that, at this stage of the proceedings, it would not be appropriate to change the minor’s current place of stay. [C] is a young child and should function in a relatively stable environment, rather than constantly changing her place of stay. Accordingly, on the basis of Article 755 §1 point 4 of the Code of Civil Procedure, the Court granted interim relief in the case by establishing, for the duration of the proceedings, the place of stay of the minor [C] at the mother’s place of residence in the United Kingdom. For the same reasons, the Court dismissed [FC]’s application to entrust parental authority to him and to establish the minor’s place of stay at the father’s place of residence. The interim relief order is temporary in nature, whereas the Court will finally decide the issue of exercising care over the minor in the judgment concluding the proceedings. In addition, the manner of interim relief may be changed during the proceedings as a result of a change in the circumstances of the case. In order to diagnose the minor’s situation, the Court admitted evidence from the opinion of the Second Opinion-Giving Team of Court Specialists… regarding the parties’ parental competences, the emotional bonds between the minor and each of the parents, and whether the minor’s welfare supports her place of residence being in Poland under the care of the father or in the United Kingdom under the care of the mother. Ony after all the evidence has been gathered will the Court make further decisions in the case.”
[15]Hence, the decision on residence was an interim one and the final decision remains open. I am satisfied that the interim decision was based on the welfare of the child. It was a decision not only that C should live with MC but that she should live with MC in the United Kingdom. It was also clearly in the contemplation of the Polish court that it was appropriate to carry out the further evidence gathering and to make a final determination with the child continuing to be resident in the UK – that was not an impediment. Nevertheless, I anticipate that MC and C may have to travel to Poland for the purposes of those investigations and proceedings.[16]Mr Viollet informed the court that FC was intending to apply to appeal the decision on interim residence. He told the court that FC, who has legal representation in Poland, has prepared papers for an appeal with a view to making an application on 8 June 2026. He was unable to provide me with any timetable for the determination of such an appeal nor were either party able to provide a likely timetable for the further proceedings and the final welfare decision in Poland. However, the proceedings have taken six months to reach an interim decision on residence and there is clearly some further, significant professional or expert evidence to obtained. It might well take at least another few months before the final determinations are made.[17]At the hearing I gave my ruling on the preliminary issue of whether to proceed to determine FC’s application for a summary return and indicated that I would give a written judgment with full reasons.[18]The court has to exercise its case management powers to ensure that cases are managed justly, proportionately, and efficiently. It would be contrary to the swift resolution of HC 1980 applications to adjourn for a long period unless that were exceptionally necessary, but it would also be a waste of the court’s time and resources, as well as those of the parties, to conduct hearings and make decisions that are or might well be academic.[19]By the Hague Convention 1996 Art 23(1):
“The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States.”
The interim residence decision by the Polish court is one which I must recognise. A return order “forthwith” under the Hague Convention would clearly cut across that decision. Comity dictates that the court should respect the decision of the Polish court and not make orders that undermine it.[20]I note that both parties made applications in the Polish court and have fully engaged in the proceedings there. No point has been taken about the lack of jurisdiction of the Polish court to make the interim order or to go on to make a final order as to child arrangements. Mr Gration KC could not speak for the mother’s Polish lawyers, but she appears to be fully committed to those proceedings and it would be surprising for a point on jurisdiction now to be taken. The Polish court has not set out the basis of its assumption of jurisdiction but neither party has contended before it, or before me, that it does not have jurisdiction. The Polish court’s jurisdiction may well not depend on C’s habitual residence, certainly not at the time the father alleges the mother wrongfully removed C in February 2026.[21]An order made now for return forthwith would have no utility because, as noted, MC could simply travel back to England without committing a wrongful removal. In In the matter of D (above) Munby P noted the decision of Holman J in AF v HS [2015] EWHC 2968 (Fam) in which the father made a return application under HC 1980 after what Holman J described as a “blatant” abduction by the mother. Nevertheless, the abduction had been “overtaken” by subsequent French orders that the children should live in England and, as Munby P put it, it simply made no sense to contemplate their return to France (albeit in that case both parents were living in England). Munby P was dealing himself with an application to withdraw the HC 1980 application but he said, obiter, that had an application to withdraw not been made he would, for the same reasons as given by Holman J, have summarily dismissed the proceedings. He observed the developments in a foreign court, “the effect of which was to deprive the Hague proceedings of any continuing utility and to make it unnecessary and inappropriate to allow the proceedings to continue in circumstances where there was no obvious benefit either to the parents or to the children in carrying on. In such a case, in my judgment, the court undoubtedly has power, applying the principles in Re C [Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089] to bring the proceedings to a premature conclusion. In the nature of things, I would expect such cases to arise only infrequently. The vast bulk of Hague cases will – must – continue to a substantive hearing in the usual way.”[22]On the same reasoning, I conclude that there would be no utility in making a forthwith return order in the present case at this stage, nor at all unless or until the Polish court makes a different residence order. Nevertheless, in this particular case there is a prospect of an imminent appeal against the interim residence order in Poland and I have to consider the possibility that it could succeed. If it were successful, then the reason why the HC 1980 application is currently of no utility would no longer exist and consideration could then be given to proceeding with it.[23]I reject the proposal that the court should consider the father’s application and, if it is successful, make a return order conditional on the Polish court deciding that C should live with him in Poland. That Polish decision is unlikely to be made, if it is made at all, for several months when other circumstances may well have changed. The mother raises defences including under Art13(b), grave risk of harm. I could not reasonably make a decision now that the defence is not only not made out in the present circumstances but would also not be made out in several months from now. The court has to examine the circumstances for the child were they to return. I cannot know what the circumstances will be in a few months’ time. A conditional order would not be appropriate.[24]I also reject the proposal to determine certain issues now, such as habitual residence and/or wrongful removal, but not others. A determination on habitual residence would not be relevant to the Polish court and it would potentially be an academic exercise in these proceedings. Likewise, a determination on wrongful removal would potentially be academic. If the final order of the Polish court is for C to live with MC in England, then the time taken to make rulings on habitual residence and/or wrongful removal in this court will have been a waste of time. Nor are those issues straightforward in this case when C had lived for substantial periods in both England and Poland in the twelve months before the application herein and there are significant disputes about the effects of agreements reached between the parties.[25]One option would be to dismiss the application for summary return now but FC might successfully appeal the interim decision or there might be some other change of circumstances in the short term future which could make a determination of his application for a return order appropriate and worthwhile. On the other hand, a stay for anything but a finite and relatively short period would cut across the objects of the Convention.[26]The HC 1980 is not an instrument for the enforcement of welfare orders made abroad. If the proceedings herein are dismissed summarily – as Munby P held the court is entitled to do – and the Polish court were to decide that C should live with FC in Poland, then under the1996 Convention that decision would be recognised and enforceable in this jurisdiction, subject to certain exceptions. Hence, there is no justification for keeping the current application open until the conclusion of the Polish proceedings, whenever that might be, simply for the purpose of enforcing the final order in those proceedings.[27]Striking a just balance and having regard to the utility of continuing these proceedings and all the circumstances, my decision is to stay the application under HC 1980 for a period of three months with liberty to restore on 3 days’ notice if there is a change of circumstances (such as a successful appeal against the interim order) but if there is no application within three months then the application shall stand dismissed without need for a further hearing.[28]It does not follow that this court will necessarily decide to proceed with the father’s application if his appeal is successful. The court will want to know the likely timetable for the final resolution of proceedings in Poland and all other relevant circumstances.[29]I made other directions at the hearing regarding passports, prohibited steps orders, undertakings, and the Port Alert, giving reasons at court which do not need to be repeated in this judgment. They will allow MC and C to travel to Poland as required to participate in evidence gathering and hearings relevant to the Polish proceedings.