A (Children) (Retention: Article 13 (b): Return to Israel), Re

For the purposes of the Hague Convention, a retention becomes wrongful when an agreed temporary period ends without agreement to extend it. The left-behind parent need not make a further demand for return.

In determining habitual residence, the court conducts a fact-sensitive global assessment centred on the child’s integration in the social and family environment. Under Article 13(b), the court assesses the alleged risk cumulatively, taking the allegations at their highest where appropriate, while retaining an evaluative assessment of their substance. If a grave risk is established, effective protective measures must be identified. Their likely compliance and enforcement consequences must be examined, not merely their formal enforceability.

The father sought the summary return of three young children to Israel under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention. The children had travelled from Israel to England with their mother on 22 June 2023, with return flights booked for 6 July 2023, but did not return.

The mother alleged domestic abuse, isolation, community pressures and risks arising from the conflict in Israel. She also contended that the children had become habitually resident in England and that return would expose them to a grave risk under Article 13(b). The central issues were the date of wrongful retention, the children’s habitual residence, and whether the Article 13(b) exception was established.

1. Wrongful retention. The children were retained on 6 July 2023, when the agreed two-week stay in England ended. The evidence established a fixed return date and no agreement to extend the stay. The fact that the father did not subsequently demand return did not postpone wrongful retention. Any failure to act might bear on acquiescence under Article 13(a), but acquiescence was not pursued and could not be recast as part of the Article 3 issue.
2. Habitual residence. The children were habitually resident in Israel immediately before the retention. Habitual residence required a global, child-focused assessment of integration, stability, social and family environment and parental intention. The children could not have acquired habitual residence in England during the two-week holiday. Even by 29 September 2023, their integration and stability in England were insufficient, although the judge might have reached a different conclusion by 22 January 2024.
3. Article 13(b). The mother’s allegations were considered cumulatively and, subject to one qualification, at their highest. The court remained entitled to assess their credibility and substance. The alleged risks to the mother had to be examined by reference to their effect on the children. The evidence did not establish a particularised grave risk from the conflict in Israel to these children. Nor would the mother’s possible refusal to return, or the children’s temporary care by their father, itself establish the exception.
4. The protective measures offered by the father, including non-harassment undertakings, separate accommodation, financial support, continued schooling and health insurance, and registration of a mirror order in the Israeli civil court, sufficiently addressed the potential risks. The appropriate rent was ILS9,000 per month for six months or until earlier orders of the Israeli family court.
5. The Article 13(b) exception was not made out. Article 12 therefore required summary return. The application succeeded, subject to the protective measures being translated into and registered as a mirror order in Israel before return. The mother was permitted time to decide whether to return with the children.
6. In the addendum, publication of the judgment in anonymised form was ordered after balancing the competing interests under ECHR Articles 6, 8 and 10.