NM v SM

Proceedings under the 1980 Hague Convention are directed to the prompt return of a child to the jurisdiction of habitual residence, subject only to the Convention’s narrow exceptions. Habitual residence is determined by all circumstances, including the child’s integration in the relevant social and family environment. Parental intention is relevant but not determinative, and no permanent or indefinite residence intention is required.

Consent to removal or retention must be clear and unequivocal. For the one-year period in Article 12, the court must determine the factual date of wrongful removal or retention; where a finite temporary period was agreed without a precise date, the court must do the best it can on the evidence. Under Article 13(b), the asserted risk must be grave, and protective measures need be considered only if the threshold is met.

The applicant mother sought the summary return of the parties’ four-year-old son to Romania. The child had travelled from England to Romania with the mother and his sister in January 2022 and was brought back to England by the respondent father in May 2022.

The father resisted return, alleging that the child was habitually resident in England and Wales, that the mother had consented to his retention, that the child was settled for Article 12 purposes, and that return would expose him to a grave risk of harm or an intolerable situation under Article 13(b).

The court also considered the effect of related Romanian decisions on issues including the parents’ agreement to relocate and the child’s habitual residence.

1. Return order. The court found that the child was wrongfully retained in England and Wales and ordered his return forthwith to Romania, with implementation within 28 days to allow the father to obtain a visa and accompany him.
2. Date of retention. The agreed temporary period was two or three weeks. On the evidence, the relevant date of retention was 24 May 2022. Article 12 requires calculation by reference to the days elapsed from the date of wrongful removal or retention, not by reference merely to the month in which return was expected.
3. Habitual residence. Habitual residence depends on all circumstances specific to the child. Relevant matters included the parents’ intention to relocate, the child’s age and dependence on his mother, the stable family life in Romania, Romanian nationality and registration, family and social relationships, possessions taken there, and the mother’s integration. The child was habitually resident in Romania at the date of retention.
4. Consent. The father had not established clear and unequivocal consent to permanent retention in England. The evidence instead showed agreement to a temporary stay and the mother’s continuing expectation of return.
5. Settlement. Because the wrongful retention occurred less than one year before the proceedings were issued, the Article 12 settlement exception was not engaged.
6. Grave risk. The father’s reliance on separation, language, unfamiliar surroundings, alleged hostility from the maternal grandmother, the war in Ukraine, anticipated difficulties with contact and alleged domestic abuse did not establish a grave risk of physical or psychological harm or an intolerable situation. As no prima facie case was shown, consideration of protective measures was unnecessary.
7. Foreign findings. A foreign judgment may create an issue estoppel where the foreign court had competent jurisdiction, the decision was final and on the merits, the parties were the same, the issue was clearly determined rather than collateral, and the issue was the same. The Romanian Hague Convention decision clearly determined the parents’ agreement to relocate, although it did not determine the child’s habitual residence in the present proceedings. In any event, the English court reached the same conclusion on the evidence.

First-instance decision. No appellate history was stated in the judgment.