X (A Child), Re

In proceedings under the 1980 Hague Convention, the court must determine the child’s habitual residence and whether removal was wrongful before considering any exception to summary return. Habitual residence is a factual inquiry centred on the child’s integration in a social and family environment. Under article 13(b), the opposing party must prove on the balance of probabilities a grave risk of physical or psychological harm or an intolerable situation. The court must examine the concrete circumstances facing the child on return and consider effective protective measures. Difficulties for a parent, economic preferences, ordinary exposure to racism, or distress caused by separation will not necessarily meet that threshold. Where no article 13(b) defence is established, the court must order return forthwith.

The father applied for the summary return of his four-year-old daughter to the Czech Republic under the 1980 Hague Convention. The child had been removed to England by her mother without the father’s consent or a court order. The mother sought an adjournment to obtain legal representation, but the application was refused because she had received repeated assistance and further delay would prejudice the Convention timetable.

The issues were whether the child was habitually resident in the Czech Republic, whether her removal breached the father’s custody rights, and whether the mother could establish the article 13(b) exception based on racism, childcare arrangements, lack of accommodation or employment, and emotional harm from separation.

1. Adjournment. The application to adjourn was refused. The mother had been encouraged on several occasions to obtain representation, had been given details of suitable solicitors, had interpreter assistance, and had received explanations of the proceedings. Further delay would take the case well beyond the Convention’s six-week target.
2. Habitual residence and wrongful removal. The child had lived her whole life in the Czech Republic, where she was settled and integrated. She was therefore habitually resident there. The father had custody rights including the right to determine the child’s place of residence. The removal was without his knowledge or consent and was wrongful under article 3.
3. Article 12. The application was made within one year of removal. The court was therefore required to order the child’s return forthwith unless an article 13 exception was proved on the balance of probabilities and the court exercised its discretion against return.
4. Article 13(b). The burden was on the mother. The risk had to be grave, not merely real, and the court had to assess the concrete situation the child would face on return. An intolerable situation meant one which that particular child, in those particular circumstances, should not be expected to tolerate. The court had to consider available protective measures, including the father’s undertakings and support from family members.
5. The mother failed to establish grave psychological harm, an intolerable situation, or a sufficiently serious risk arising from racism, childcare, economic circumstances or separation. The child could return with her mother or be cared for by her father with family support. The court stated that, even if its discretion had been engaged, it would have ordered return firmly. The child was ordered to return to the Czech Republic.

First-instance judgment of the High Court (Family Division). No appellate history was stated in the judgment.