TY v HY (Return Order) (Rev 1)

Habitual residence under the 1980 Hague Convention is determined by the child’s degree of integration in a social and family environment. Stability, rather than permanence or duration alone, is central. Parental intention is relevant but not determinative.

Consent to removal must be clear, operative, and unconditional unless any condition is objectively ascertainable and intended by both parents to bind them. Once acted upon, consent cannot ordinarily be withdrawn. Establishing a Convention exception opens a discretion to order return. That discretion may properly be exercised where the child’s strongest practical, familial, cultural and evidential connections remain with the country of habitual residence.

The father applied under the Child Abduction and Custody Act 1985 for the summary return of the parties’ two-year-old child to Israel under Arts 3 and 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The mother contended that the child had become habitually resident in England and Wales. Alternatively, she relied on consent and the grave-risk exception under Art 13(b). The central issues were the child’s habitual residence, whether the father’s consent was conditional or obtained by fraud, whether protective measures addressed the alleged risk, and whether return should nevertheless be ordered in the exercise of the court’s discretion.

1. Habitual residence. The child remained habitually resident in Israel. Habitual residence required assessment of the child’s integration in the relevant social and family environment, viewed in the context of the child’s actual life. Although the move to England involved a lease, employment, nursery, banking and other arrangements, the child had spent only about six and a half weeks in England. The family remained unsettled, the parents’ relationship was disintegrating, and the child’s established family, social, linguistic, cultural and educational connections remained in Israel.
2. Parental intention was relevant but not determinative. The fact that habitual residence can be acquired quickly did not displace the need to assess the quality and stability of the child’s integration.
3. Consent. The father consented to the child’s removal to England. The alleged condition that the family would return if the move failed was not proved. Any such condition would have needed to be clear, readily determinable and intended by both parties to bind them. The consent was not shown to have been obtained by fraud or misrepresentation. It remained operative when acted upon and could not subsequently be withdrawn.
4. Grave risk. Applying Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27, the court assessed the alleged risk at its highest on the admissible evidence, without conducting a full fact-finding exercise. The assumed risk was limited to physical and verbal abuse of the mother. The father’s undertakings and other protective measures were sufficient to address it, subject to confirmation that the arrest warrant was discharged.
5. Discretion. Although the consent exception was established, the discretion to order return remained at large. The child was Israeli, had no practical connection with England, and had her extended family, identity, culture, first language and the relevant welfare evidence in Israel. It was in her interests for welfare decisions to be made there. Return was therefore ordered under Art 12. The court stated that it would have made the same order under the inherent jurisdiction even if England and Wales had been the child’s habitual residence.

First-instance decision. No appeal history is stated in the judgment.