W v X

In Hague Convention proceedings for wrongful retention, the court must determine the retention date, the child’s habitual residence immediately beforehand and any established exception to summary return. A parent’s subjective intention may be relevant to wrongful retention, but an overt act inconsistent with custody rights need not be communicated to the left-behind parent. Habitual residence depends on the child’s integration, assessed against the depth of prior integration; the retaining parent’s unilateral intention is not determinative.

Article 13 exceptions must be assessed realistically and in the round. Protective measures may answer a grave-risk case, while the child-objection exception requires a tripartite inquiry into objection, age and maturity, and discretion. The child’s welfare is important but not paramount. The court may order return where the relevant risks are manageable and the factors favouring return outweigh the objections.

W sought the summary return of his eight-year-old daughter, Y, from England to Italy under the Hague Convention 1980. Y had travelled to England with her mother, X, on 11 June 2021 with W’s agreement for a temporary stay. Y did not return for the beginning of the Italian academic year.

W reported the matter to the Italian police, applied to the Italian central authority and issued proceedings in England. X relied on alleged consent, acquiescence, changed habitual residence, grave risk of psychological harm, intolerability and Y’s objections. The central issues were whether Y had been wrongfully retained, whether Italy remained her habitual residence, whether any Article 13 exception was established and whether the court should exercise its discretion to order return.

1. Wrongful retention. X failed to prove that W had consented to Y’s permanent relocation or acquiesced in her remaining in England. Applying Re C, the application for settled status on 30 June 2021 was an overt act inconsistent with W’s custody rights. X had the subjective intention to retain Y. Communication of the overt act to W was unnecessary. The retention was therefore repudiatory and Article 3 was engaged.
2. Habitual residence. Y’s habitual residence immediately before retention remained Italy. Her lifelong integration there, including family, language, schooling and nationality, outweighed less than three weeks’ residence and initial schooling in England. X’s intention to retain Y was not determinative, particularly where the retention had been achieved through deception. The court considered that even by September the deep Italian integration remained significant.
3. Article 13(1)(b). X failed to establish a grave risk of psychological harm or an intolerable situation. Y would return with X, and W undertook not to remove Y from her care. Medication, family support, accommodation and financial provision materially mitigated the risks identified by the psychiatrist. Temporary accommodation with the maternal grandmother, or modest alternative accommodation, was not intolerable.
4. Article 13(2). Y objected to return and had sufficient age and maturity for her views to be taken into account. The resulting discretion was at large. Her welfare was important but not paramount, and no factor had automatic predominance. The court weighed her objections, their possible adult influence, her relationship with both parents, delay, family and national connections, education, mental-health risks, comity, the home-court principle and the deterrent purpose of the Convention.
5. The factors favouring return significantly outweighed those against it. The court ordered Y’s summary return to Italy after the end of the English academic year, subject to W paying €8,000 into X’s solicitors’ account for living and accommodation expenses.