M v F

In a summary-return application under the 1980 Hague Convention, consent and acquiescence require clear evidence. Consent is active, advance and communicated permission. Acquiescence requires proof of the left-behind parent’s actual state of mind, assessed principally from words and conduct, subject to the exceptional case where conduct clearly and unequivocally represents that the right to return will not be asserted.

Habitual residence is child-centred. Stability and integration in the child’s social and family environment are more significant than the number of days spent in a country. The Article 13(b) defence has a high threshold. Risk must be grave, assessed prospectively and by reference to the particular child. Generalised evidence about wartime conditions is insufficient without a concrete assessment of the child’s situation and available protective measures.

The mother applied under the 1980 Hague Convention for the summary return of the parties’ five-year-old daughter to Kyiv, Ukraine. The father resisted return, relying on Articles 3, 13(a) and 13(b), contending that the child was habitually resident in England, that the mother had consented or acquiesced to relocation, and that return would expose the child to grave risk of harm or an intolerable situation because of the war in Ukraine.

The court determined the child’s habitual residence, the consent and acquiescence defences, and the relevance of general evidence, travel advice and expert evidence concerning conditions in Kyiv.

1. Consent and acquiescence. The mother had not clearly agreed to a permanent move to London. The parties’ communications showed continuing negotiation and conflict, rather than active, advance and communicated permission. Nor had the father established acquiescence. The evidence was ambiguous and incapable of demonstrating the clarity required by Article 13(a).
2. Habitual residence. The child remained habitually resident in Ukraine. The assessment had to focus on the child, not primarily on the parents’ arrangements or the time spent in particular locations. The child’s home, primary care, family relationships, schooling, language, cultural life and established routines were centred in Kyiv. Stability and integration, rather than arithmetic calculation of days, were decisive.
3. Article 13(b). The court applied the high threshold explained in Re E and Re IG. The risk had to be grave and concern the child’s situation on a prospective return. The court was not required to resolve every disputed allegation by a full fact-finding exercise. It had to assess the alleged risk at its highest, examine the concrete circumstances of return, and consider protective measures.
4. Risk could comprise several strands. Those strands had to be analysed separately where necessary but assessed cumulatively. The father’s evidence about a possible future escalation of the war was plausible but speculative and generalised. It did not establish a grave risk to this child in Kyiv. The FCDO travel guidance was prepared for foreign travellers and could not bear the elevated weight contended for it.
5. Kyiv remained a functioning city with intact civic infrastructure. The child’s family were well placed to protect her and to adopt sensible measures if circumstances deteriorated. The Article 13(b) defence therefore failed, and the court ordered the child’s summary return to Ukraine.