Buscador de jurisprudencia

The father and mother met in Zimbabwe in 2013. The father alleges that they had a customary marriage under Zimbabwean law; the mother denies this. They had a child together, born in February 2014. In 2017 the parties separated. 

The mother had custody of the child and the father has frequent contact with him. Between 2019 and 2021 the mother worked in South Africa, and the child was looked after by the father. The mother regained custody when she returned to Zimbabwe in 2021.

In January 2022 the Magistrates Court in a city in Zimbabwe was required to decide an application by the mother for custody of the child. It held that it was in the child’s best interests for custody to be awarded to the mother, with the father to be granted regular contact.

In August 2022 the mother visited the local District Registry and re-registered the child’s name as a Shona name, changed his date of birth, and omitted mention of the father on the second notice of birth form.

In October 2022 the mother travelled to the United Kingdom to stay with her sister. The father says he did not hear from them until 2024. 

In February 2025 the father travelled to the UK to see the child.

In April 2025 the father made an application under the 1980 Hague Abduction Convention for the return of the child. 

Return refused. The father did not have rights of custody within the meaning of Article 3. 

Rights of Custody - Art. 3

The mother argued that the father did not have rights of custody within the meaning of Article 3 of the 1980 Hague Convention. The mother had custody rights while the father had only been granted access rights and there is no rule in Zimbabwe that prevents the custodian parent from removing the child, unless the court had provided expressly or by implication that the child be kept within the jurisdiction.

The Judge agreed and held that the rights enjoyed by the father did not constitute “rights of custody” within the meaning of Article 3. 

Settlement of the Child - Art. 12(2)

Though not strictly necessary, the judge then went on to consider the other exceptions to return relied upon by the mother.

Regarding settlement, there was a substantial element of concealment in the case, with the mother taking the child without consent and changing his name. Furthermore, the child did not live with his mother but with his uncle and aunt and the child’s guardian concluded that he was not fully settled but partially settled. 

However, given the significant length of time that had passed, the child had been living with his aunt and uncle, with frequent visits from the mother, and had settled into the environment in England on a physical and psychological level. He was well integrated into the community and doing well at school. 

Taking all the evidence into account, the Judge found that the child was well-settled in England.

Acquiescence - Art. 13(1)(a)

The Judge held that the father did not acquiesce to the removal. He did not know where the child had been taken and made efforts to find him. 

Grave Risk - Art. 13(1)(b)

The mother alleged that the father was controlling and abusive. The Judge found that her complaints were not serious or consistent enough to be considered a grave risk of harm to the child within the meaning of Article 13(1)(b).

Objections of the Child to a Return - Art. 13(2)

The Judge found that the child, age 11, had attained an age and degree of maturity at which it was appropriate to take account of his views. However, his desire not to return to Zimbabwe was held to be a preference rather than an objection. 

Human Rights - Art. 20

The Judge held that, even if it had been appropriate to order the return of the child to Zimbabwe, this would not have given rise to a breach of his Article 8 rights. Further, if the Hague Convention is properly applied, it is most unlikely that there will be any breach of Article 8 or other Convention rights unless other factors supervene.

Issues Relating to Return

The Judge also held that he would also decline to exercise his discretion to return the child to Zimbabwe. This was based on the length of time that had passed since the removal, the context of a settlement case and the child’s level of integration into an English environment, the resumed relationship he now has with his father and the uncertain prospects for a continuing relationship with his mother should he return to Zimbabwe.