Re XX (A Child)

For the Hague Convention 1980 to treat a court as holding rights of custody, the court must have before it an application for an order concerning custody and must have power to make that order. Mere proceedings concerning paternity, protection or access are insufficient.

Where the Convention is engaged, summary return may be refused under Article 13(b) where return would create a grave risk of serious psychological harm or an intolerable situation, including prolonged or irrevocable separation from a primary carer.

For care proceedings, habitual residence is a child-focused factual question. The court must consider integration into the social and family environment, with parental intention relevant but not determinative. England was also the natural and appropriate forum on the facts.

The proceedings concerned a young child brought from the United States to England by his mother. The father sought summary return under the Hague Convention 1980. Coventry City Council separately brought care proceedings after the child was placed in foster care.

The court considered whether the father or the Oklahoma court had rights of custody at the date of removal, whether return would expose the child to grave risk under Article 13(b), whether the English court had jurisdiction over the care proceedings, and whether England or California was the appropriate forum.

1. Hague Convention 1980. The father accepted that he did not personally exercise rights of custody when the child left the United States. The question was whether such rights were vested in the Oklahoma court. The authorities, including In re H and Re C (Unmarried Father: Custody Rights), required the court to have a materially engaged custody application and power to make an order concerning rights of custody. The father’s paternity application, the mother’s protective applications and the dismissed emergency custody application did not satisfy that requirement. Article 3 was therefore not engaged and the removal was not wrongful.
2. Grave risk. If return were ordered, there was a very significant possibility that the child would be separated from his mother for a prolonged period and possibly permanently. The father opposed contact, the mother faced an arrest warrant and substantial bail, and no protective measures were offered. Applying Re E (Children) (Abduction: Custody Appeal), this amounted to a grave risk of serious psychological harm and an intolerable situation. This conclusion was given for completeness because Article 3 was not engaged.
3. Care jurisdiction. It was unnecessary to resolve whether jurisdiction arose under the Hague Convention 1996, the Family Law Act 1986 or common law presence principles. On either possible relevant date, the child was habitually resident in England. Habitual residence depended on the child’s actual integration into a social and family environment. The child’s age, breastfeeding, primary relationship with his mother, accommodation and access to English health and social services supported that conclusion. Parental intention was relevant but not determinative.
4. Forum. Applying Spiliada v Consulex, England was the natural and appropriate forum. The child, his carers and mother were in England, the care proceedings were English proceedings involving an English local authority, and welfare evidence was principally located here. The application for a stay and transfer to California was rejected.