Return of a child under the 1980 Hague child abduction convention to a ‘third state’?

The 1980 Hague Convention on the Civil Aspects of International Child Abduction seeks inter alia to protect children internationally from the harmful effects of parental child abductions and ‘to establish procedures to ensure their prompt return to the State of their habitual residence’ (Preamble) [emphasis added]. Accordingly, save in exceptional circumstances (see Arts. 12(2), 13 and 20), an abducted child shall be returned ‘forthwith’ (Art. 12(1)). The return order is intended to reinstate the status quo that existed before the abduction (Explanatory Report to the 1980 Convention, para. 18 (hereafter: ‘Explanatory Report’)) and enable any determination of the merits of the custody rights to take place ‘before the competent authorities in the State where the child had its habitual residence prior to its removal’ (Perez-Vera, 1981, para. 19). In Re B (A Child) (Abduction: Habitual Residence) [2020] EWCA Civ 1187, the Court of Appeal (consisting of Moylan, Baker and Phillips LJJ) was faced with the question whether, on the facts of the case, the trial judge interpreted the concept of habitual residence appropriately and arrived at a correct finding as to where the child was habitually resident prior to the abduction. Importantly, Moylan LJ also expressed an obiter view on whether there is power under the Convention to order the ‘return’ of the child to a Contracting State other than the one where the child was habitually resident immediately before the abduction (‘‘‘return” to a third state’). The focus of this case comment is on the obiter point