E v D

Under the 1980 Hague Convention, habitual residence depends on the child’s factual integration in a social and family environment, assessed holistically at the date of the alleged removal or retention. Stability and integration matter more than permanence, duration alone or parental intention.

The consent exception requires clear and unequivocal consent that remains operative when the child is retained. Acquiescence concerns the wronged parent’s actual subjective intention after the abduction. A return will be refused under Article 13(b) only where the evidence establishes a grave risk of harm or an intolerable situation. Protective measures arise only if that threshold is met.

The mother applied for the summary return of her five-year-old son, V, to Malta under the 1980 Hague Convention. The father had travelled with V from Malta to England in December 2021 and retained him there in early January 2022.

The father contended that V was habitually resident in England and Wales by the relevant date, that the mother had consented to or acquiesced in the retention, and that a return to Malta would expose V to a grave risk of harm or an intolerable situation. He had also obtained without-notice private-law orders after the mother sought V’s return.

The central issue was whether the retention was wrongful and, if so, whether any Article 13 exception prevented a summary return.

1. Application granted. V was to be returned to Malta under Article 12 of the 1980 Hague Convention. He was to travel with the mother on 17 April 2022 and reside with her pending the first hearing of any Maltese welfare proceedings.

2. At the relevant date, V was habitually resident in Malta. The inquiry was child-focused and concerned his factual integration in a social and family environment. V had lived there for most of his life, attended nursery and school, had friendships and activities, held a Maltese residence card, and shared his parents’ substantial residential and working links with Malta. His British nationality and the parents’ earlier links with England carried limited weight. The brief period in England before retention did not displace his settled integration in Malta or establish a new habitual residence.

3. The mother had not clearly and unequivocally consented to V’s retention. The father’s covert school registration, failure to disclose his arrangements, and lack of any planned departure from V’s Maltese school undermined his case. A single text sent during an argument did not amount to operative consent. Nor had the mother acquiesced: her prompt stated intention to collect V and return him to Malta was inconsistent with a subjective intention to accept the retention.

4. The Article 13(b) defence failed. There was no evidence capable of establishing a grave risk of physical or psychological harm, or an intolerable situation, if V returned to the mother in Malta. The mother had accommodation and employment, and the father’s allegations about her parenting and personal life were unsupported. As the threshold was not met, protective measures did not require consideration.

This was a first-instance judgment. The judgment records related without-notice private-law orders made by Deputy District Judge Grant in the Central London Family Court on the father’s application, before the mother’s Hague Convention application was determined.