Z (A Child : Hague Convention application)

Habitual residence under the 1980 Hague Convention is a factual question requiring a comparative assessment of the child’s integration in the social and family environments of each jurisdiction. Parental intention is relevant but not determinative. Stability, rather than permanence, is required, and the court must consider the child’s actual day-to-day life.

A grave-risk defence under Article 13(b) may be established where a return would cause such serious deterioration in the primary carer’s mental health that the child’s situation would become intolerable. The court must assess the particular circumstances and consider whether proposed protective measures sufficiently reduce the risk.

The father applied under the 1980 Hague Convention for the return of the three-year-old child, Z, to Australia. The mother resisted on the grounds that Z was habitually resident in England, that the father had acquiesced in his retention, and that return would expose Z to a grave risk of harm or an intolerable situation.

The parents had lived in Australia, but the mother and Z came to England in September 2019. Their plans were disputed and remained fluid. Z attended nursery and developed substantial family and social connections in England. By the time of the alleged retention, the father had moved to Darwin, the former family home in Australia was no longer available, and the mother was experiencing significant mental-health difficulties.

The central issues were Z’s habitual residence at the relevant time and, alternatively, whether either Article 13 defence was established.

1. The application was dismissed. Z was habitually resident in England by late December 2019. There had therefore been no breach of Article 3 and no order for Z’s return to Australia.

2. Habitual residence was a question of fact. The court had to consider the child’s degree of integration in the social and family environment, the stability of the residence, the child’s day-to-day life and experiences, and the position comparatively in both jurisdictions. Parental intention was relevant but not determinative.

3. The evidence showed a continuing state of flux about the purpose and duration of the stay in England. The mother and Z had given up their Australian accommodation, the mother had disposed of most of her possessions, and the parents had not reached agreement about Z’s long-term future. Z had meanwhile become settled and integrated in England through nursery, family relationships and his wider social environment. Australia offered no equivalent settled home or social and family environment.

4. The court did not need to decide whether the relevant date was when the mother formed the intention to retain Z or when that intention was objectively communicated. The difference between 28 December 2019 and 17 January 2020 did not affect the assessment.

5. The acquiescence defence would have failed. The father had made his position clear before the retention, objected promptly when informed that Z would remain in England, and took active legal steps despite limited communication during February and March.

6. The Article 13(b) defence was also established. The combination of the mother’s evidence and Dr Gamble’s evidence showed a likely escalation of her mental-health difficulties if required to return against her wishes, amid prolonged conflict, uncertainty, limited support and the absence of a secure home and employment. That deterioration could impair her parenting to the extent that Z’s situation would become intolerable. The proposed financial, housing and other protective measures would not sufficiently reduce the risk.