KW v RM

In summary-return proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980, wrongful retention is assessed by reference to the parties’ agreement and the surrounding circumstances. An anticipatory retention may occur before an agreed return date, and communication of the retaining parent’s intention may not be essential. Habitual residence is a question of fact, requiring a child-centred assessment of integration in the relevant social and family environment. Duration alone is not determinative. Under Article 13(b), the court must assess the future situation on return and the protective measures available. It must determine whether there is a grave risk of physical or psychological harm or an intolerable situation, rather than conduct a general welfare comparison.

The applicant father sought the summary return of his infant son to the USA under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention. The child had been born and had lived in the USA, but travelled to England with his father while the mother received treatment for serious post-natal mental illness. The father agreed that the child could remain in England for a few weeks while the mother was treated. The mother later decided to remain in England with the child and did not return him. The central issues were the date of wrongful retention, the child’s habitual residence, acquiescence, and the Article 13(a) and 13(b) defences.

1. Wrongful retention. The father’s consent extended only to a temporary stay in England, expected to last no later than mid to late June 2017. By 15 June, the mother’s decision not to return the child was clear and the father had unequivocally withdrawn his agreement. The child was therefore wrongfully retained from that date at the latest.
2. An anticipatory retention can occur before an agreed date of return. The judgment recognised the majority reasoning in Re C (Children) that communication of an intention to retain is not necessarily required. On either analysis, the retention was wrongful by 15 June.
3. Habitual residence. The child remained habitually resident in the USA. He had strong and established family and social ties there, including his settled home, parents, paternal family and medical connections. His stay in England was temporary and extended only for treatment. His care in England was substantially institutional, his mother was unable to care for him without supervision, and there was no stable residence or settled future plan. The child was not habitually resident in England.
4. Article 13(a). The father had not acquiesced. He repeatedly asserted his custody rights, sought the child’s return and commenced proceedings in New York State.
5. Article 13(b). The mother failed to establish a grave risk that return would expose the child to physical or psychological harm or place him in an intolerable situation. The court considered the alleged violence, accommodation and financial support, the mother’s psychiatric vulnerability, the child’s relationship with each parent, available healthcare and social services, the father’s undertakings, and the protective role of the New York courts. The return might increase the mother’s risk of relapse, but that risk already existed and did not establish the Article 13(b) defence.
6. The Article 13 defences were not established. The father’s application was allowed and the court ordered the child’s summary return to the USA. Longer-term family arrangements were for the courts exercising jurisdiction there.

First-instance decision. No earlier appellate decision is stated in the judgment.