TS v DMM

In summary return proceedings under the Hague Convention 1980, habitual residence is a child-focused question of fact. The court must assess the child’s degree of integration in the relevant social and family environment, considering parental intention as relevant but not determinative. Stability, rather than permanence or a prescribed period, is required, and full integration is unnecessary.

For an Article 13(b) defence, the court assesses the alleged risk at its highest on the available evidence. The risk must be grave and concern the child’s future situation on return. If protective measures sufficiently neutralise the risk, the defence is not established. Where the Convention conditions are met and the defence fails, return must be ordered forthwith.

The father applied under the Child Abduction and Custody Act 1985, incorporating the Hague Convention 1980, for the summary return of C, aged 22 months, to Poland. The mother opposed return, arguing that C remained habitually resident in England and relying on Article 13(b), including alleged abusive behaviour by the father towards her and C’s older half-brother, P.

The family had moved from England to Poland in July 2021. The parents separated in September 2021, after which C remained in Poland with the mother and had frequent contact with the father and paternal family. The mother brought C and P to England in January 2022. The central issues were C’s habitual residence immediately before removal, the existence of a grave risk on return, and the adequacy of proposed protective measures.

1. Habitual residence. C was habitually resident in Poland immediately before his removal. The inquiry was centred on C’s circumstances, day-to-day life and integration in his social and family environment. The parents’ intention to relocate permanently was relevant but not determinative. The court balanced the connections with England and Poland, including the six months spent in Poland, C’s relationships with both extended families, his Polish citizenship and medical registration, and his continuing English connections.
2. The mother’s unhappiness and lack of integration did not prevent C from acquiring habitual residence in Poland. The relevant question was whether C had achieved some degree of integration, not whether he or his primary carer was fully integrated. His mother’s later decision to return to England did not alter C’s habitual residence.
3. Article 3. The removal was wrongful because it breached the father’s rights of custody, which were being exercised jointly with the mother.
4. Article 13(b). The court took the allegations of abusive behaviour at their highest. It was not necessary to determine every allegation conclusively. The court nevertheless considered the effect of a return on P and the relationship between P and C. Separation of the siblings, or of C from his mother, could create a grave risk of psychological harm or an intolerable situation.
5. Protective measures. The father’s undertakings, including non-violence and non-harassment undertakings, restricted contact, residence arrangements and financial provision, together with the absence of evidence that the mother could not obtain prompt relief in Poland, neutralised the identified risk. The undertakings were accepted by the court and treated as protective measures under Article 11 of the 1996 Hague Convention. The Article 13(b) defence therefore failed, so it was unnecessary to exercise the return discretion.
6. C was ordered to be returned to Poland forthwith, meaning by 4 pm on 10 June 2022.