P (Habitual Residence, Art 13(b) Grave Risk of Harm), Re

In Hague Convention summary-return proceedings, the court must determine whether the child was habitually resident in the requesting State and whether removal breached the applicant’s autonomous rights of custody. Rights of custody may arise from a foreign judicial order granting an institution power to determine the child’s residence.

Where proceedings begin within one year of wrongful removal, return under Article 12 is mandatory unless an applicable Convention defence is established. Habitual residence is a factual question centred on the child’s integration, stability and practical connection with the relevant environment. Under Article 13(b), the respondent must establish a grave, rather than merely real, risk of harm or intolerability. The court may assess the allegations summarily and consider concrete, effective and proportionate protective measures available in the requesting State.

The Social Services of Naples sought the summary return of a seven-year-old child to Italy under the 1980 Hague Convention. The child had lived in Italy from birth. An Italian court had suspended both parents’ parental responsibility and granted sole responsibility to the applicant, which had arranged the child’s placement.

The father removed the child to England and relied on alleged settlement, a change of habitual residence, absence of wrongful removal, and the Article 13(b) defence. The child was placed in foster care in England pending determination of the return application. The central issues were whether the applicant had rights of custody, whether the removal was wrongful, whether the child remained habitually resident in Italy, and whether return would expose him to grave risk or an intolerable situation.

1. Disposition. The application succeeded. The court ordered the summary return of the child to Italy. The father failed to establish the asserted exceptions and defences.
2. Rights of custody and wrongful removal. Applying the two-stage approach in Hunter v Murrow and NT v LT, the court considered the applicant’s rights under Italian law and then whether those rights amounted to rights of custody under the autonomous law of the Convention. The Italian order gave the applicant sole parental responsibility and power to determine the child’s place of residence. Those rights were being exercised, or would have been exercised but for the removal. The father’s asserted rights did not prevent the removal from being wrongful because he acted unilaterally and without the applicant’s consent. The removal therefore breached Articles 3 and 5.
3. Settlement and habitual residence. Proceedings had been issued within one year, so Article 12 required an immediate return and the settlement exception was unavailable. Habitual residence remained a child-focused factual inquiry. Although habitual residence could theoretically be acquired quickly, the child had not developed sufficient integration, stability or practical connection with England. His established roots, schooling, family life and belongings remained in Italy.
4. Article 13(b). The father bore the burden of proving a grave risk of physical or psychological harm or an intolerable situation. The court did not conduct a fact-finding trial. Taking the allegations at their highest, they lacked the detail and substance capable of establishing a grave risk. The court also considered the future concrete circumstances of return and was satisfied that Italian administrative and judicial authorities could protect the child. The proposed community placement, supervised parental contact and access to Italian courts and appeals were sufficient protective arrangements.
5. Comity and welfare jurisdiction. The Italian courts were already seized of the welfare dispute and were best placed to determine the child’s long-term care. The Convention’s objectives therefore strongly supported return.

First-instance decision. No earlier appellate decision concerning this English return application is stated in the judgment.