L v K

In Hague Convention proceedings, the relevant wrongful act must be identified before habitual residence is assessed. Where a child was taken abroad with permission for an undefined period, continuing negotiations or failure to agree a return date does not itself constitute wrongful retention. There must be an objectively identifiable act or statement showing repudiation of the custodial parent’s rights, normally through a clear and unequivocal withdrawal of consent or demand for return.

Habitual residence is a child-focused question of fact. A child may acquire habitual residence during a temporary or undefined stay if there is sufficient integration into the new social and family environment. Stability, family life, schooling, activities and friendships are relevant; parental intention is relevant but not determinative.

The applicant mother sought the return of her seven-year-old son to the United States under the Child Abduction and Custody Act 1985 and the Hague Convention. She had agreed that the child could live with his father in England for an undefined period while she recovered from a serious mental-health crisis.

The mother began seeking the child’s return in late 2022, but continued discussions about timing. The father first clearly refused return on 12 July 2023. The central issues were whether that was the first wrongful retention and whether the child was habitually resident in England on that date. The court also addressed, obiter, the child-objection and grave-risk defences.

1. Wrongful retention. The court adapted the approach in Re C. A wrongful retention requires an objectively identifiable act, statement or combination of acts manifesting denial or repudiation of the other parent’s custody rights. A purely internal intention is insufficient, and the court rejected the submission that prevarication, non-engagement or omission could alone constitute the wrongful act. The mother had not clearly and unequivocally withdrawn permission for the child to remain in England before 12 July 2023. The father’s conduct was therefore not wrongful before that date.
2. Habitual residence. Habitual residence is a child-focused factual inquiry concerned with some degree of integration in a social and family environment. Stability, rather than permanence, is material. A child may acquire a new habitual residence during a fixed or undefined temporary stay. Parental intention is relevant but not determinative.
3. By July 2023 the child had completed nearly a school year in England, was living in a stable family unit with his father and stepmother, had activities and friends, and had settled well at school. Those matters established habitual residence in England. The correct court to determine long-term welfare arrangements was consequently the court in the United Kingdom.
4. The remaining defences did not arise for decision. Had the child remained habitually resident in the United States, the court would not have found a sufficiently clear objection under article 13. It would, however, have accepted the article 13(b) defence. The evidence did not adequately establish that the mother’s recovery from alcohol, drug abuse and mental-health difficulties was sufficiently secure, and previously proposed protective measures had failed to prevent serious harm. The court would therefore have found a grave risk of harm on the available evidence.