Z v Z

Under the 1980 Hague Convention, wrongful retention requires an agreed point for return. A fixed calendar date is unnecessary if return is tied to an identifiable triggering event, but an entirely open-ended departure will rarely establish wrongful retention.

Habitual residence is a question of fact and degree, assessed by examining the child’s situation and connections in the old and new states and the degree of integration achieved. A child’s preference to remain with a primary carer is not necessarily an objection to return. Article 13(b) requires a high-threshold, child-focused assessment of grave risk or an intolerable situation, including whether protective measures can address the risk.

The father applied under the 1980 Hague Convention for the return of the parties’ three children to British Columbia, Canada. The mother and children had travelled to England with the father’s consent while the mother underwent treatment for advanced cancer.

The father contended that the arrangement was temporary and that the children should have returned after chemotherapy in about March 2022. The mother maintained that she and the children were to remain in England until completion of her treatment. The issues included wrongful retention, habitual residence, acquiescence, the children’s objections and the Article 13(b) defence.

The application for a return order was refused on three independent grounds: wrongful retention was not established; the children were habitually resident in England at the relevant time; and the Article 13(b) defence was made out.

1. Wrongful retention. Article 3 did not require a fixed calendar date for return. It was sufficient that return was linked to an agreed triggering event, but there had to be some indication that the departure was temporary rather than open-ended. The parties had agreed that the mother and children would remain in England for the duration of the mother’s cancer treatment. That treatment had not concluded, so there had been no wrongful retention. The issue of acquiescence therefore did not arise.
2. Repudiatory breach. The father’s alternative case was academic. In any event, remaining in England for the duration of the agreed treatment merely restated the agreement. There was no clear and objectively verifiable indication that the mother intended to remain permanently after treatment, as contemplated in Re C and another (Children) (International Centre for Family Law, Policy and Practice Intervening) [2019] AC 1.
3. Habitual residence. Applying the approach in Re B (A Child) (Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam) and Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) 2020 EWCA Civ 1105, the court assessed the children’s connections and integration in both countries. Their Canadian roots were strong, but one-way travel, withdrawal from Canadian education, enrolment in English schools, local activities, family support and the father’s extended presence in England showed integration here. Habitual residence transferred at about the beginning of April 2022.
4. Children’s objections. The children expressed a preference to remain in England, largely because of their close relationship with their mother and concern about separation from her. They did not object to Canada or return as such. The defence was therefore not made out.
5. Article 13(b). The court adopted the high-threshold, child-focused test stated in Re IG [2021] EWCA Civ 1123. Requiring the children to return without their mother, during her continuing cancer treatment and against the background of settled life in England and parental breakdown, would expose them to a grave risk of emotional harm and an intolerable situation. Expedited custody proceedings in Canada would not provide adequate protection. Applying Re M (Abduction: Zimbabwe) [2007] UKHL 55, the court declined to exercise its discretion to order return.

A separate Children Act order was to regulate contact between the children and their father.