X v Y

Under the 1980 Hague Convention, a child habitually resident in one Contracting State may, in an appropriate case, be ordered to return to another Contracting State. The return jurisdiction need not be the child’s state of habitual residence where that course promotes the Convention’s objectives and avoids an impractical or unsafe return.

Consent to removal must be clear and unequivocal, viewed in the realities of family life. Consent may be limited to a temporary arrangement and does not necessarily extend to long-term residence. Acquiescence depends primarily on the wronged parent’s actual state of mind, assessed from all the circumstances.

The child-objections exception has a straightforward gateway. If satisfied, the court retains a broad discretion, balancing the child’s views, welfare considerations and Convention policy.

The mother applied under the Child Abduction and Custody Act 1985 for the summary return of two children under the 1980 Hague Convention. The children had been habitually resident in Ukraine. During the war, the mother took them to Germany, where the father subsequently took them to England with the mother’s agreement to a temporary arrangement.

The mother sought their return to Germany, where she and the maternal grandmother had protected status. The father argued that the Convention did not permit return to a third state and relied on consent, acquiescence and the children’s objections. The central issues were whether Germany could be the return destination, whether the retention became wrongful, and whether the exceptions justified refusing return.

1. Third-state return. The children were habitually resident in Ukraine, but the Convention permitted an order for their return to Germany, another Contracting State. The court adopted Moylan LJ’s reasoning in In Re B, despite its obiter status, because restricting Article 12 to return to the state of habitual residence would not promote the Convention’s objectives.
2. Habitual residence. Habitual residence is a question of fact requiring some degree of integration in a social and family environment. The children’s brief stay in Germany was a temporary flight from danger and did not establish integration there. They remained habitually resident in Ukraine.
3. Consent and acquiescence. Applying Re G, the mother had consented to removal to England, but only temporarily while arrangements were made for the family unit. She had not consented to long-term residence in England with the father. Applying Re H, acquiescence was not established. Enrolment at school and registration with a doctor were consistent with temporary arrangements. The father’s retention became wrongful on or about 25 March 2022, when the mother sought return to Germany.
4. Children’s objections. A’s clear preference to remain in England amounted to an objection and opened the discretionary gateway. B’s views did not amount to an objection. The court considered the children’s ages, maturity, expressed views, influence from adult discussions, disruption, relationships with both families and the Convention’s policy favouring prompt return.
5. Disposition. Balancing those matters, the court ordered both children’s return to Germany and sought undertakings from the mother to facilitate return. The parents were asked to agree travel and contact arrangements pending determination of welfare issues by the German courts.