RS (A Child), Re

In an application under the 1980 Hague Convention, retention occurs when a child taken abroad for a limited period is not returned when that period expires. Habitual residence is a question of fact, assessed by the child’s integration into the relevant social and family environment, including the circumstances and parental intention surrounding the move.

Where domestic abuse is alleged under Article 13(b), the court must first consider whether the allegations, if true, establish a grave risk of harm or an intolerable situation. It must then assess whether effective protective measures can remove that risk. Comprehensive undertakings, accommodation, community support and safeguards communicated to relevant persons may defeat the exception.

The father applied for the summary return of his son, R, to Israel under the 1980 Hague Convention. The mother had travelled with R from Israel to England in February 2015 and opposed return, alleging that the father had consented to an indefinite stay and had subjected her to abusive behaviour.

The court considered when R had been retained, whether he remained habitually resident in Israel at that date, and whether return would expose him to a grave risk of psychological harm or place him in an intolerable situation under Article 13(b). The central issues were the parties’ agreement about the duration of the stay, R’s integration in England, and the adequacy of protective measures offered by the father.

1. Wrongful retention. Retention occurs when a child who has been abroad for a limited period is not returned at the end of that period. The mother and R left Israel on an agreed limited basis, although no fixed return date was set. The mother resolved not to return R on 1 March 2015, and that was the date of retention.
2. Habitual residence. Habitual residence is a question of fact. It requires consideration of the child’s integration into a social and family environment, the reason for the stay, parental intention, and the child’s dependence on the relevant carers. R had been born and fully integrated in Israel. By 1 March he had not acquired sufficient social or family integration in England. He therefore remained habitually resident in Israel, making the retention wrongful.
3. Article 13(b). The mother bore the burden of establishing the exception on the ordinary balance of probabilities. The risk had to be sufficiently serious to be grave. The court first considered whether the alleged domestic abuse, if true, created the requisite risk, and then considered whether protective measures could adequately address it.
4. The mother had gone some way towards establishing a grave risk of psychological harm or an intolerable situation without protection. However, the father’s comprehensive undertakings, including not separating R from the mother, not pursuing punitive proceedings, vacating the family home, providing financial and practical support, and refraining from abuse, together with the kibbutz’s support structure, provided sufficiently strong protection. Copies of the order, undertakings and judgment were also to be provided to the kibbutz’s social worker and social manager.
5. The Article 13(b) defence therefore failed. The father’s application succeeded, and R was ordered to return to Israel by 15 August 2015, subject to the specified undertakings and conditions.