Rights of Custody – Art. 3
The mother adduced expert evidence of Zimbabwe law, in particular s. 5(1) of the Guardianship of Minors Act, which entered into effect in 1961, that where either of the parents of a minor child leaves the other and the parents commence to live apart, the mother shall have sole custody of the child until a custody order is made. The mother’s expert argued that in removing the children from the matrimonial home, the mother had thereby acquired sole custody by operation of law. The court rejected this evidence. It stated that it did not seek to interpret Zimbabwean law, rather to apply the law relating to the Convention in accordance with the way in which it is applied in England. The court cited the authority of Re F. (A Minor) (Child Abduction: Rights of Custody Abroad)  Fam 224 [INCADAT cite: HC/E/UKs 8]. The court also placed weight on the fact that the High Court in Zimbabwe had made a decision or determination under Article 15 that the removal had been wrongful.