E v D

On an application under the 1980 Hague Convention, habitual residence is assessed at the date of the alleged wrongful retention. It depends on the child’s integration in a social and family environment, assessed in all the circumstances. Stability matters more than permanence, and parental intention is relevant rather than determinative. Consent must be clear and unequivocal. Acquiescence ordinarily depends on the wronged parent’s actual subjective intention, assessed particularly through contemporaneous conduct. The grave-risk exception requires a reasonable assessment of the available evidence within the summary procedure. Protective measures need be considered only where the reasonably assumed risk reaches the Convention threshold. Where wrongful retention is established and no exception applies, summary return enables the courts of the state of habitual residence to determine long-term welfare.

The applicant mother, E, sought the return to Malta of V, her five-year-old son, under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention. The respondent father, D, resisted the application. Following earlier residence in England and Canada, V had lived with both parents in Malta from May 2019, apart from a twelve-week visit to Canada. He attended school and participated in local activities there.

The father took V to England in December 2021 and retained him there on or about 4 January 2022. He maintained that V remained habitually resident in England and that the parents had agreed that V would be educated there. He subsequently obtained without-notice child arrangements and prohibited steps orders from the Central London Family Court. The mother maintained that the English visit was temporary and sought V’s return to Malta.

The court had to determine V’s habitual residence at retention and whether consent, acquiescence or grave risk of harm justified refusing return. It declined the father’s request for oral evidence because the extensive documentary evidence permitted fair summary determination.

1. The application was granted. V was habitually resident in Malta when retained in England on or about 4 January 2022. The mother was exercising rights of custody, and neither consent nor acquiescence was established. The retention was wrongful, and the grave-risk exception was not made out. A return order was therefore made under Art 12 of the 1980 Hague Convention ([34]; [45]; [58]–[59]).

2. Habitual residence required some integration in a social and family environment, assessed at retention rather than at the subsequent application. The inquiry was child-focused and qualitative. For a young child, the carers’ integration was relevant, but parental intention was not determinative and permanent residence was unnecessary. V’s residence, schooling, friendships, activities and lawful residence status demonstrated integration in Malta. The short English visit had not displaced it. British citizenship and earlier English connections did not outweigh that evidence. Re G-E (Children) (Hague Convention 1980: Repudiatory Retention and Habitual Residence) [2019] 2 FLR 17 was distinguishable on its facts ([35]–[45]).

3. Consent had to be clear and unequivocal, viewed in the realities of family breakdown. The father bore the burden of establishing it. His covert school registration and failure to disclose that the tickets were one-way undermined the alleged agreement. Statements made during arguments did not establish consent to retention. The approach in Re P-J (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588 was applied ([25]–[26]; [47]–[51]).

4. Acquiescence concerned the mother’s actual subjective intention, with particular weight given to contemporaneous words and actions. Under Re H (Minors)(Abduction: Acquiescence) [1998] AC 72, unequivocal outward conduct could exceptionally bind a parent. Here, the mother’s stated intention to collect V and return him to Malta only seventeen days after retention was inconsistent with acquiescence ([27]; [52]–[53]).

5. The Art 13(b) inquiry required reasoned and reasonable assumptions grounded in the admissible evidence, consistently with the summary procedure. Taking alleged risk at its highest did not require acceptance of unsupported assertions. The allegations concerning supervision and emotional harm lacked evidential support. The mother had accommodation and employment, and V could lawfully reside in Malta. The threshold identified in Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144 was not reached, so protective measures required no further consideration ([29]–[31]; [54]–[57]).

6. By way of guidance, protective undertakings require evidence of practical effectiveness, including compliance and remedies. Greater reliance requires greater scrutiny. Oral evidence is rarely permitted in Convention proceedings; the documents here were sufficient. The father’s earlier without-notice application breached the duty of candour by withholding material residence history ([3]; [18]; [32]–[33]).

7. V was to return with his mother on 17 April 2022 and reside with her pending the first Maltese hearing. Disclosure of the judgment to any Maltese court considering his welfare was permitted ([59]–[62]).

On 7 February 2022, the father obtained without-notice child arrangements and prohibited steps orders under the Children Act 1989 from Deputy District Judge Grant at the Central London Family Court. That court declared itself satisfied that V was habitually resident in England and Wales. In these first-instance Convention proceedings, the High Court found that the father had failed to disclose material residence history in the earlier application and ordered V’s return to Malta ([18]; [59]).