S, Re

Habitual residence is a factual, child-focused question concerning integration in a social and family environment. An older child’s state of mind may be relevant, and habitual residence can change quickly, but intention alone is insufficient.

An Article 13 objections defence requires a genuine objection, not merely a preference. Article 13(b) requires a grave risk of physical or psychological harm or an intolerable situation, assessed by reference to the particular child and circumstances. Protective measures must be examined concretely and for practical efficacy.

After refusing return under the Hague Convention, the court also refused a return order under BIIa on the very particular facts, since that would undermine the Hague decision and risk separating the siblings.

The mother sought the summary return of three children to Poland under the 1980 Hague Convention and recognition and enforcement of a Polish child-arrangements order under Council Regulation 2201/2003 EC (BIIa). The children had travelled to England for a holiday but remained there with their father. The mother alleged wrongful retention; the father and children relied on Article 13(b) and the children’s objections.

The court had to determine the children’s habitual residence, whether the Convention exceptions were established, and whether the Polish order should nevertheless result in return under BIIa.

1. The mother proved wrongful retention. The children remained habitually resident in Poland immediately before retention. They lived, attended school and were deeply integrated there. Their nationality, language and family connections supported that conclusion. A’s undisclosed plan to remain in England did not establish a sufficiently integrated new habitual residence.
2. Habitual residence is a factual inquiry into integration in a social and family environment. Relevant matters include the duration, conditions and reasons for the stay, schooling, nationality, language and family and social relationships. An older child’s state of mind may be relevant, and a new habitual residence may be acquired rapidly, but the outcome depends on the whole factual context.
3. A objected to returning to Poland, rather than merely preferring to remain in England, and was sufficiently mature for her views to be taken into account. I and E did not themselves object, although their wishes were relevant. A’s objection was inextricably linked to returning to her mother’s care. The close sibling bond meant that A’s likely refusal to return affected the position of the younger children.
4. The court found a grave risk under Article 13(b). The evidence supported a risk of physical and psychological harm from the mother’s treatment, which was likely to continue given her lack of insight. The probable separation of the siblings created a further intolerable situation and risk of emotional harm.
5. Protective measures had to be assessed in concrete terms, including their likely effectiveness. No adequate measures could protect the children from the identified risks or from the emotional harm of sibling separation. The mother’s undertakings were insufficient. The Article 13(b) defence was established.
6. The court exercised its discretion against return, weighing Convention policy against the children’s welfare, their views, the grave risk, their stability in England and the consequences of a further move.
7. On the very particular and unusual facts, the court also refused to order return through BIIa. Such an order would undermine the Hague decision; the Polish orders had been made on a different factual basis and assumed that the children would remain together.