M (A Child: Hague Convention)

Under the Hague Convention, retention is a specific event and becomes wrongful when a parent repudiates an agreed temporary stay and keeps the child without intending to return. Whether retention occurred depends on the parties’ agreement and the circumstances viewed objectively, including contemporaneous conduct.

Habitual residence is a factual question focused on the child’s integration and the stability of the child’s life in a social and family environment. A temporary intention does not prevent habitual residence arising. A short visit to another country will not necessarily displace an existing habitual residence.

Where the Convention has no application because the child was habitually resident in the requested state, the return application must be dismissed. Alternatively, acquiescence and the child’s objections may justify exercising the discretion not to order return.

The father sought the summary return of M, aged eight, to Poland under the 1980 Hague Convention. M’s mother had taken him to England in July 2018 with the father’s agreement. The parties subsequently agreed that M could remain in England for an undefined period, while expecting that he and his mother would eventually return to Poland.

M attended school in England and lived there with his mother and her partner. In April 2019 the father took M to Poland for an agreed holiday but retained him there. The mother recovered M and returned with him to England on 30 May 2019 without the father’s consent.

The issues included whether there had been a wrongful retention or removal, M’s habitual residence, acquiescence, settlement, the Article 13(b) defence, M’s objections, and the court’s discretion.

1. Retention and removal. Retention is a specific event, not a continuing state of affairs. The parties agreed in August 2018 that M could remain in England for several further months, without a fixed return date. That agreement continued until April 2019. The mother’s conduct, including M’s schooling, registration with a GP and residence with her partner, did not amount to repudiation of the agreement.
2. The mother’s engagement to her partner in November 2018 did not constitute repudiatory retention. In context, it did not materially change the arrangements, did not make return impossible, and did not pre-empt the father’s custody rights. The father continued to accept M’s residence in England after learning of the engagement.
3. The father’s retention of M in Poland in April 2019 was unilateral and contrary to the parties’ agreement. The mother’s return of M to England on 30 May 2019 was a removal without the father’s consent, but it was not wrongful because M was then habitually resident in England.
4. Habitual residence. The relevant inquiry was factual and concerned M’s integration and the stability of his life in England. By 30 May 2019 M had lived in England for nine months, attended school there, formed friendships, lived as part of a family unit and developed social and linguistic connections. His short and unsettled period in Poland in April and May 2019 did not establish a new habitual residence there.
5. Even by 10 November 2018, M had sufficient integration and stability in England to be habitually resident there. The parents’ expectation that the stay might be temporary did not prevent that conclusion.
6. Accordingly, the Convention did not apply and the father’s application was dismissed. Alternatively, if the Convention applied, the father had acquiesced in M’s continued residence in England after January 2019, M objected to return and was sufficiently mature for his objections to be taken into account, and the court would have exercised its discretion not to order return. The Article 13(b) defence was not established.

1. Court of Appeal. The mother appealed an order for M’s summary return made by Deputy High Court Judge Ekaney QC on 17 January 2020. On 13 May 2020 the Court of Appeal allowed the appeal and remitted the matter to the High Court if the father wished to continue.
2. High Court (Family Division). Mr Justice Poole reheard the application and dismissed it.