S (1980 Hague Convention; Habitual Residence; Article 13), Re

Under the 1980 Hague Convention, habitual residence is a child-focused question of fact. The court assesses the circumstances of the child’s life and degree of integration into the relevant social and family environment. Stability, rather than permanence, is required.

Consent must be clear and unequivocal. Acquiescence ordinarily concerns the left-behind parent’s subjective state of mind, although exceptionally clear outward conduct may make it unjust to permit a later claim for return.

Article 13(b) requires a forward-looking assessment of grave risk to the particular child. Past conduct may be probative, but the court must consider the concrete situation on return and the adequacy of protective measures.

The mother applied for the summary return of her nine-year-old daughter, S, to Japan under the 1980 Hague Convention, incorporated by Schedule 1 to the Child Abduction and Custody Act 1985. S had travelled to England with her father for an agreed summer visit in June 2022 and did not return.

The mother alleged wrongful removal or retention. The father disputed this and relied on habitual residence, consent, acquiescence, S’s objections and the Article 13(b) grave-risk defence. The court also considered whether any discretion to order return should be exercised.

1. Outcome. The application for summary return was dismissed. S was habitually resident in England and Wales by the end of October 2022, so any retention then was not wrongful under Article 3. The judge reached the same ultimate conclusion on alternative grounds.
2. Removal and habitual residence. The father intended to return S when he removed her from Japan in June 2022. The removal was therefore not wrongful. By October, S had integrated into English social and family life. Relevant circumstances included her schooling, friendships, medical registration, family relationships, the father’s intention that she remain, and the stability and security of her life in England. Parental intention was relevant but not determinative.
3. Consent and acquiescence. The mother’s conduct supported an inference that she had at times accepted S remaining in England, but her position was inconsistent. The judge therefore found no clear and unequivocal consent. Alternatively, the mother had subjectively gone along with S’s continued residence from early September 2022. If that conclusion were wrong, her outward conduct clearly indicated that she was not asserting a right to summary return, making this an exceptional case of acquiescence.
4. Objections. S’s strongly expressed views amounted to an objection to return. Her objection to Japan was inseparably linked with returning to her mother’s care. She was of an age and maturity at which her views should be taken into account, although they were not determinative.
5. Article 13(b). If necessary, the judge would have found a grave risk of physical or psychological harm, or an intolerable situation, on return. The assessment was future-focused and child-specific, while the mother’s past abusive conduct was relevant evidence. The proposed protective measures were inadequate. The court would have exercised its discretion against return.