NT v LT (Return to Russia)

Under the 1980 Hague Convention, habitual residence depends on the child’s degree of integration in a social and family environment. A lawful, permanent relocation with a habitually resident parent will ordinarily result in acquired habitual residence, but the assessment remains child-focused and fact-sensitive.

Rights of custody are autonomous Convention concepts. A parent’s rights under the law of the child’s habitual residence may amount to rights of custody even where domestic law gives the other parent a “lives with” order and no travel ban exists. Article 13(b) remains a narrowly confined exception requiring a grave risk of harm or an intolerable situation. A child’s objection opens the court’s discretion but is not determinative.

The mother applied for the summary return of K, aged eight, to Russia under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, and alternatively under the inherent jurisdiction. K had moved from England to Russia with his father pursuant to an English order in July 2018, attended school there, and returned to England with his father in July 2019. He remained in England thereafter.

The mother alleged wrongful removal or retention. The father disputed K’s Russian habitual residence, denied that the mother had rights of custody, relied on Article 13(b), and relied on K’s objections to return. The central issues were habitual residence, custody rights, grave risk, K’s objections, and the exercise of discretion.

1. Habitual residence. K had acquired habitual residence in Russia by the summer of 2019. The assessment was child-focused and concerned the degree of integration in a social and family environment. K had lived in Russia for about ten months, attended school there, lived with his father and extended family, and received medical care there. The permanent nature of the move and the father’s habitual residence in Russia were important context. The removal or retention was therefore wrongful under Article 3.
2. Rights of custody. The relevant inquiry was first the mother’s legal position under Russian law and then whether that position amounted to Convention rights of custody. Articles 61, 65 and 66 of the Russian Family Code gave both parents substantial parental rights and responsibilities. The mother’s right to participate in upbringing and education was not reduced to a mere potential right to apply for a travel ban. The absence of a travel ban meant only that the departure did not breach migration law; it did not negate rights of custody. Article 16(3) of the 1996 Hague Convention independently preserved parental responsibility after the change of habitual residence. The father’s removal breached the mother’s rights of custody.
3. Article 13(b). The father failed to establish the grave risk exception. The court had to assess the situation on an immediate return, including protective measures. The evidence did not establish the severe psychological harm or intolerable situation contemplated by the Convention. The father could return with K, and, if he did not, suitable care could be arranged in Russia.
4. Child’s objections and discretion. K was sufficiently mature for his views to be considered and had objected to returning to Russia. The gateway inquiry was straightforward and should avoid technical sub-tests. At the discretionary stage, however, the objection was not strong or wholly autonomous. It was intertwined with hostility towards the mother and likely influenced by inappropriate sharing of adult information. Wider welfare considerations, including restoration of contact with the mother and Russian family relationships and the advanced Russian welfare proceedings, favoured return. K was ordered returned to Russia.
5. Stay. A stay or suspension pending Russian welfare proceedings would be exceptional and inconsistent with the Convention’s requirement of prompt return. No stay was granted. The inherent-jurisdiction application did not require determination.
6. Expert evidence. Although the father’s application for a second Russian-law report breached the statutory and procedural requirements, it was admitted because the issue was central, the expert was qualified, and there was time for the single joint expert to respond. The court emphasised that such indulgence would rarely be repeated.