JK v LM (Rev 1)

Where parents agree that children will live temporarily in another country, retention becomes wrongful only when the agreed conditions for return have been met and the retaining parent then refuses to return them. A condition requiring suitable accommodation is assessed objectively in its factual context. Habitual residence remains a child-centred question of integration and stability. Under Article 13(b), a grave risk may arise where return would place children in chaotic and insecure conditions which they should not be expected to tolerate. The children’s objections exception involves a gateway inquiry, followed by a broad discretion that weighs the children’s authentic and mature views against the Convention’s objectives.

The mother applied for the summary return of three children from Wales to Ireland under the 1980 Hague Convention and Brussels IIR. The children had been living with their father in Wales since November 2018, after the mother agreed that he should care for them temporarily while she obtained suitable accommodation.

The mother alleged wrongful retention from December 2018. The father disputed that allegation and relied on the parties’ agreement, the children’s habitual residence in Wales, and Article 13 exceptions. The central issues were the meaning and operation of the agreement, the date and existence of any wrongful retention, habitual residence, and the Article 13(b) and children’s objections exceptions.

1. Disposition. The application for summary return was dismissed. The mother had not established wrongful removal or retention. The court nevertheless considered the alternative issues.
2. Agreement and retention. The parties agreed that the children would live with the father in Wales temporarily until the mother secured suitable accommodation. The arrangement had no fixed end date. Suitable accommodation objectively required basic fitness for the mother and children, access to schooling, and reasonable stability and security. The father had no subjective veto, but the mother could not demand return regardless of the accommodation obtained. The accommodation shown by the evidence did not meet those requirements. Retention was therefore not wrongful on 19 December 2018, on 3 January 2019, or before the application.
3. Habitual residence. Habitual residence was assessed by reference to the children’s integration in their social and family environment, with stability relevant but duration non-determinative. The children had a deep integration in Wales. Their life in Ireland had been itinerant and unstable, with only brief school attendance and no sufficient evidence of wider social or family integration. They remained habitually resident in the United Kingdom.
4. Article 13(b). Had there been wrongful retention from Ireland, return would have exposed the children to a grave risk of an intolerable situation. The proposed arrangements in Ireland were uncertain, precarious and repeatedly changed. The mother’s undertakings supplied no reliable protection. The children’s settled and thriving circumstances in Wales were also relevant.
5. Children’s objections. Applying the gateway and discretionary approach in Re M (Republic of Ireland) [2015] EWCA Civ 26, all three children objected to return and were sufficiently mature for their views to be taken into account. Their objections were consistent, strongly held and independently expressed. Weighing those objections, their welfare circumstances and the Convention’s objectives, the court would have exercised its discretion against return.