W v Z

Habitual residence is determined by the child’s degree of integration in a social and family environment, assessed qualitatively and by reference to all the circumstances. Stability matters more than the mere duration of residence. Parental intention is relevant but not decisive.

For Article 13(b), the court must assess whether the alleged risk is grave and concerns physical harm, psychological harm or an intolerable situation. The assessment is forward-looking, though past conduct may be relevant. Protective measures must be examined concretely and for their likely efficacy.

The mother applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the return of two children to the USA. The father had removed them from the USA to the United Kingdom during an agreed day visit. He disputed that the children were habitually resident in the USA and, alternatively, relied on Article 13(b), alleging grave psychological harm and an intolerable situation on return.

The hearing proceeded on written evidence and submissions. The issues were the children’s habitual residence at the date of removal, whether the Article 13(b) defence was established, and whether proposed protective measures were sufficient.

The mother’s application for the return of the children to the USA was granted.

1. Habitual residence. The question was child-focused and factual. The court assessed the children’s integration in their social and family environment, the qualitative stability of their residence, the continuity of care, the parents’ involvement, community and family relationships, schooling, accommodation and the parties’ intentions. The parents had jointly agreed to move to the USA. Although they differed about the intended duration, the stay became open-ended, return tickets were changed to travel vouchers, longer-term accommodation was obtained and the father did not challenge the mother’s expressed wish to remain. The children retained continuity of care and became integrated in the USA. Their several moves and the retention of possessions in the United Kingdom did not prevent habitual residence being established.
2. Article 13(b). The father had not established a grave risk of psychological harm or an intolerable situation. The court considered the historical local-authority involvement, the children’s education and medical issues, the mother’s mental health, the father’s previous participation in the family arrangements and the circumstances existing on a forward-looking basis. The evidence demonstrated some risk, but not a grave risk in the circumstances then prevailing.
3. Protective measures. Alternatively, the proposed measures were sufficient to ameliorate any risk. They included arrangements concerning schooling, consultation about medical issues and continued engagement with the Bais HaVaad arbitration process. The court was satisfied that the mother would comply and that the father could travel repeatedly to the USA.
4. There was therefore no need to exercise the discretion arising after establishment of an Article 13(b) defence. The parties were directed to liaise on the terms of the order and to continue the arbitration process.