B v N

In a summary-return application under the 1980 Hague Convention, habitual residence is determined from the child’s factual circumstances as a whole. Relevant considerations include integration in the social and family environment, parental intention and the stability of residence. No single factor is determinative.

Consent to removal or retention must be clear, unequivocal and communicated between the parents. It may be inferred from words and conduct, but cannot operate unilaterally. An Article 13(b) defence requires a grave risk of physical or psychological harm, or an intolerable situation, assessed prospectively and by reference to available protective measures.

The father applied under the Child Abduction and Custody Act 1985 for the summary return of his five-year-old son to Germany under Article 12 of the 1980 Hague Convention. The child had lived with the mother in England since September 2020, after living with the father in Germany from May 2019.

The mother disputed that the child was habitually resident in Germany and relied on consent, acquiescence and Article 13(b). The court determined the child’s habitual residence, whether consent or acquiescence had been established, and whether return would expose him to a grave risk or intolerable situation.

1. Habitual residence. The court applied the established factual approach in Re B, as approved in Re M. The child’s habitual residence depended on the overall circumstances of his life, including integration, parental intention and stability. Although the father had acted unilaterally and there was no settled parental agreement that the child should live in Germany, the child had lived there continuously from May 2019 until September 2020, in a familiar environment with his father and some social and family integration. His habitual residence was therefore Germany.
2. Consent and acquiescence. Applying Re P-J and Re C, consent had to be clear, unequivocal and operative at the relevant time. The initial arrangement for the child to remain in England was time-limited and, although extended, remained linked to his return to Germany for school. The mother’s case was inconsistent with the communications and proceedings she had issued. Neither consent nor acquiescence was established.
3. Article 13(b). Applying In re E, Re D, Re C, Re S, Re P and Re A, the court considered the risk prospectively and examined whether protective measures could sufficiently ameliorate it. Expert evidence established routes by which the mother could accompany and remain with the child in Germany, obtain support and make an asylum claim there. The child would remain in her care pending determination by the German court. The defence was not made out.
4. The father’s application for the child’s return to Germany was granted. The parties were directed to discuss the final order, including timing.