Re EF (Abduction: Hague Convention (Slovakia))

In summary return proceedings, habitual residence is determined factually by the child’s integration in a social and family environment. For a very young child, the caregiver’s habitual residence is usually highly significant. Residence produced by coercion may be precarious and lack the stability required for habitual residence in the new state.

Where Article 13(b) is relied upon, the court should ordinarily assess the future risk in two stages: first, the nature and level of risk, considering allegations cumulatively; secondly, the sufficiency and efficacy of protective measures. Controlling or coercive behaviour may create grave psychological risk to a child, including through exposure to its effects on a parent. The application was dismissed because the child remained habitually resident in the United Kingdom. Alternatively, consent and grave risk defences were established.

The father sought the summary return of his four-year-old daughter from the United Kingdom to Slovakia under the 1980 Hague Convention. The mother opposed return, contending that the child remained habitually resident in the United Kingdom, that the father had consented to the child’s removal, and that return would expose the child to grave physical or psychological harm or an intolerable situation.

The court heard oral evidence from the mother but the father, although directed to attend, did not attend. The central questions were whether the child had acquired habitual residence in Slovakia during a prolonged stay there, whether the father consented to the child’s return to the United Kingdom, and whether Article 13(b) was established.

1. Application dismissed. The child was habitually resident in the United Kingdom on 17 December 2021. The father bore the burden of proving a change of habitual residence and failed to discharge it.
2. Habitual residence is a factual question concerned with integration in a social and family environment. The child was very young and primarily dependent on the mother, who retained her United Kingdom habitual residence. The mother travelled to Slovakia intending a short visit and remained there because the father removed her documents and telephone and subjected her to coercive and controlling behaviour. The child’s residence was therefore precarious and lacked the stability required for integration. The court did not apply any rule that one parent could never unilaterally change a child’s habitual residence.
3. If the Convention had applied, the mother had established the Article 13(a) defence. The father probably consented to the child’s removal to the United Kingdom before departure. Later withdrawal of consent did not undo that consent.
4. The mother had also established Article 13(b). Applying the two-stage approach in Re B, the court found a grave risk of psychological harm arising from the father’s violent, coercive and controlling behaviour, including its effects on the child. Allegations of direct abuse of the child and sexual abuse of the mother were not proved, but could not confidently be discounted and were assumed for Article 13(b) purposes.
5. The proposed protective measures were inadequate. They could not effectively prevent the mother from again falling under the father’s influence. The court’s discretion would not in any event have been exercised to order return, particularly given the grave risk, the delay in commencing proceedings and the father’s failure to attend.