OZ v ML & Ors

Habitual residence under Article 3 of the 1980 Hague Convention is a question of fact. The court must make an overall, comparative assessment of all relevant circumstances, including the child’s integration, stability of residence, schooling, language, relationships and the reasons for the move. Parental intention is relevant but not determinative.

For Article 13(b), the court assumes the alleged risk at its highest on the evidence, assesses whether it is grave, and considers whether protective measures can sufficiently mitigate it. A child’s objection must be a genuine objection to return to the country, rather than a mere preference. Where the exception or discretion arises, the court must balance Convention objectives with the child’s welfare and individual circumstances.

The applicant father sought the summary return of four children to Kazakhstan under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention. The children had been born in Kazakhstan but had lived in England with their mother, their primary carer, since November 2020, apart from a period in Kazakhstan in 2022.

The mother disputed the alleged date of retention and contended that the children were habitually resident in England and Wales. Alternatively, she relied on Article 13(b), including risks arising from alleged coercive and controlling behaviour, and on objections expressed by the two older children. The issues included habitual residence, retention, harm, objections and the exercise of any resulting discretion.

1. Retention and habitual residence. The children were retained on 30 December 2022, when they failed to board flights to Kazakhstan after the mother had agreed to travel. They were habitually resident in England and Wales on that date. Their settled schooling, healthcare, possessions, friendships, family life and integration in England outweighed their nationality and continuing connections with Kazakhstan. The intended temporary nature of the move did not prevent habitual residence, since permanence is unnecessary and stability is the relevant concept.
2. Alternative Article 13(b) determination. Although the Convention did not apply, the court considered the alternative case. On the assumption that the mother’s allegations were true, the court found a grave risk of physical or psychological harm and an intolerable situation. The mother would not return to Kazakhstan. The children would therefore be separated from their lifelong primary carer and exposed to the father’s coercive and controlling behaviour. The protective measures available under Kazakh law were inadequate in the particular circumstances, and the father’s proposed undertakings were vague and unreliable.
3. Objections. The two older children had attained sufficient age and maturity for their views to be taken into account. Each objected to returning to Kazakhstan, rather than merely expressing a preference to remain in England. Their views were freely expressed, authentically held and consistent with their welfare. The younger siblings would face an intolerable situation if separated from them.
4. Discretion and outcome. The discretion would in any event have been exercised against return. Convention objectives, comity and deterrence were outweighed by the children’s welfare, the strength of their objections and the risks arising from separation from their mother. The application was dismissed. Consequential welfare orders were reserved for further submissions.

First-instance determination in the High Court Family Division. No appellate history was stated.