H (A Child), Re

Under the Hague Abduction Convention 1980, a parent’s signature to a foreign consent order does not retrospectively establish habitual residence after wrongful removal. Two days’ presence was insufficient. For Article 13B, the court must balance available protective measures against the particular evidence of risk and their adequacy. The appeal was dismissed.

Macur J dismissed the mother’s application for H’s summary return to Mexico. H had remained there following her removal in 2008. In March 2012, the parents reached an agreement in Mexico, recorded in a court order, providing for H’s residence there and contact with her father in England. The father later resiled from the agreement.

The mother appealed, challenging the findings on habitual residence and the Article 13B exception. She also relied on the effect of an earlier English wardship order.

1. Permission to appeal was granted, but the appeal was dismissed.
2. The father’s signature to the Mexican consent order did not retrospectively legitimise H’s prior wrongful residence or establish habitual residence in Mexico. Nor was two days’ presence sufficient to create habitual residence. The Article 3 challenge therefore failed.
3. Macur J had properly balanced the protective measures available on return against evidence that they were not sufficiently established or adequate. Her acceptance of specific evidence concerning evasion, threats and the risk of renewed disappearance justified her conclusion that usual safeguards would be inadequate in the short term. The Article 13B conclusion was upheld.
4. Lord Justice Thorpe considered the earlier wardship order to be of no continuing consequence to the mediation. Lord Justice McCombe expressed a provisional contrary view, but the issue was not vital to the decision. The decision rested on habitual residence and Article 13B.
5. The court stressed that it was deciding only the summary-return application. Longer-term welfare issues remained for future determination, with judicial collaboration between England and Mexico.

• Court of Appeal (Civil Division): Permission granted; appeal dismissed.
• Principal Registry of the Family Division: Macur J dismissed the mother’s summary-return application on 19 October 2012.