GTJ v LS

In an application under the 1980 Hague Convention, the court must determine habitual residence by examining the child’s integration in the relevant social and family environment. Parental intention is relevant but not determinative.

Consent to removal must be clear and unequivocal, and must remain operative at the time of removal. The burden rests on the parent asserting consent. Acquiescence ordinarily depends on the wronged parent’s actual subjective intention, subject to a strictly exceptional case based on clear and unequivocal conduct.

For Article 13(b), the court should assess the alleged risk at its highest before considering protective measures. A grave risk may be addressed by appropriate safeguards. The court retains a discretion to order return where an exception is established.

The father applied under the 1980 Hague Convention for the summary return of his four-year-old daughter from England and Wales to South Africa. The mother opposed return, relying on habitual residence, consent or acquiescence, and the Article 13(b) grave-risk exception.

The parties had lived and maintained substantial connections in South Africa, where related proceedings had taken place. The mother removed the child to England in March 2022 after an urgent application in South Africa to facilitate relocation had been dismissed.

The issues were whether the removal breached Article 3, whether the father had consented or acquiesced, whether return would expose the child to a grave risk of harm or an intolerable situation, and, if an exception applied, whether the court should nevertheless order return.

1. Application granted. The child was habitually resident in South Africa immediately before removal. Habitual residence was a factual question focused on the child’s integration. The child’s time spent in South Africa, family connections, citizenship, nursery placement, social links and medical registration were compelling factors. The parties’ South African litigation was also significant evidence of their acceptance that the child was habitually resident there.
2. The removal was wrongful within Article 3. The South African order of 24 February 2022 permitted relief for the father, including his possible relocation with the children, and did not authorise the mother to remove the child. The mother’s urgent application was dismissed on 9 March 2022.
3. The consent defence failed. The mother bore the burden of proving clear and unequivocal consent that remained operative at removal. The father’s earlier willingness to compromise did not establish continuing consent. His opposition to the mother’s urgent application, and its dismissal, demonstrated the immediate context. Any alleged communication through the father’s brother did not provide the required confirmation from the father himself.
4. There was no acquiescence. The mother did not pursue the argument, and there was no subsequent communication or conduct by the father indicating acceptance of the removal. The later South African order giving the father permission to relocate was provisional authorisation for his benefit and did not amount to acquiescence.
5. The immigration-status limb of Article 13(b) was not established. The mother provided no independent evidence of an immediate deportation risk, while the father’s evidence indicated that his status remained valid and could potentially be regularised.
6. The domestic-abuse limb passed the threshold for considering protective measures, with the allegations taken at their highest. The proposed undertakings, including non-molestation, contact arrangements, financial and travel arrangements, and a 200-metre exclusion zone, provided an appropriate protective framework or soft landing. The defence therefore failed.
7. Even if an Article 13(b) defence had been established, the court would have exercised its discretion in favour of return, having regard to South African orders, the child’s connection with South Africa, and the relationship with her sibling. The court ordered the summary return of the child to South Africa.