H v B

Habitual residence is determined by a child-focused factual inquiry into the child’s integration in a social and family environment. Parental intention is relevant but not determinative, and no fixed period of residence is required.

Under Article 13(b) of the 1980 Hague Convention, the court must assess the concrete situation on return. It must first ask whether the allegations, if true, establish a grave risk of harm or an intolerable situation, and then consider whether protective measures sufficiently address that risk. A young child’s exposure to a primary carer’s severe emotional dysregulation and suicidal behaviour may satisfy the threshold. Undertakings may be insufficient where return would create substantial further stressors and the child cannot realistically be separated from the carer.

The father applied under the 1980 Hague Convention for the summary return of his son to France. The mother resisted the application.

The child had lived with both parents in France for several months before the mother brought him to England on 19 May 2021. The father alleged wrongful removal under Article 3. The mother accepted that the father had custody rights but disputed the child’s habitual residence. Alternatively, she relied on Article 13(b), relying on her depression, prior self-harm and suicidal ideation, the alleged abusive relationship, and the likely effect of return on the child.

The central issues were whether the child was habitually resident in France and, if so, whether the Article 13(b) exception was established despite proposed protective undertakings.

1. Habitual residence. The child was habitually resident in France when removed. The inquiry was factual and child-focused. The child’s day-to-day life was in a home with both parents, his belongings had been transferred there, and he had been registered with healthcare services in France. Those circumstances demonstrated the necessary degree of integration in a social and family environment. The mother’s unhappiness and intention to leave did not determine the child’s habitual residence.
2. Article 13(b) framework. The court focused on the concrete situation of this very young child on return. Depression alone might fall within ordinary distress or the vicissitudes of life. The relevant risk arose from the combination of depression, emotional dysregulation, self-harm and suicidal ideation, together with the child’s dependence on the mother as primary carer.
3. The evidence established a grave risk that the child would suffer psychological harm or be placed in an intolerable situation if the mother experienced further episodes of severe dysregulation. The risk included the psychological effect of witnessing the mother harm herself, contemplate suicide, become uncontrollably distressed, or behave destructively.
4. The proposed undertakings and separate accommodation would reduce the risk but did not eliminate it. Return would expose the mother to further litigation, financial dependence, limited employment prospects, distance from her parents and unavoidable arrangements with the father. There was no proper suggestion that the child could be separated from his mother. The Article 13(b) threshold was therefore met and the court exercised its discretion to refuse return.
5. The father’s application was dismissed.