F v M

Habitual residence under the 1980 Hague Convention is a child-focused question of fact and degree. A child may lose habitual residence in one state and acquire it in another very quickly where the family has made a permanent move and implemented substantial plans for relocation. Parental intention is relevant but not determinative.

The child-objections defence requires a genuine objection to return, rather than a preference for living with the abducting parent. Under Article 13(b), the court must assess the concrete situation on return, including grave risks arising from the abducting parent’s mental health and the consequences for the child. Protective measures must adequately ameliorate those risks. Where they do not, the court may refuse return.

The father applied under the 1980 Hague Convention for the return of his 10-year-old son to New Zealand. The family had moved from England to New Zealand in November 2023 after extensive preparations for permanent emigration. The mother and child returned to England in December 2023 without the father’s consent.

The mother opposed return on three grounds: that the child remained habitually resident in England, that he objected to return, and that return would expose him to a grave risk of physical or psychological harm or place him in an intolerable situation under Article 13(b). The central issues were the child’s habitual residence, the nature of his objections, and whether the risks associated with the mother’s mental health could be sufficiently addressed by protective measures.

1. Habitual residence. The child was habitually resident in New Zealand when removed. Habitual residence is a child-focused question of fact and degree requiring a degree of integration in the new state. The whole family had permanently emigrated, abandoned their previous life in England, obtained accommodation, enrolled the children in schools and begun a new life in New Zealand. The child’s habitual residence therefore transferred almost immediately, despite his deep roots in England and the short period spent in New Zealand.
2. Child’s objections. The defence was not established. The child was less emotionally mature than expected, was strongly aligned with the mother, and had been exposed to adult information. His expressed views were substantially motivated by a wish to remain with the mother and represented a preference for England rather than an objection to New Zealand within the Convention’s meaning.
3. Article 13(b). The mother established a grave risk that return would place the child in an intolerable situation. Her serious physical and mental health conditions were likely to deteriorate on return because of trauma, uncertainty over immigration status, limited resources, lack of support, medical and employment uncertainty, and renewed litigation concerning the child. The resulting effect on her ability to care for the child, together with the child’s own exposure to family conflict and the risk of separation from her, constituted an intolerable situation.
4. The mother’s anxieties did not need to be objectively reasonable if they were genuine, although the objective circumstances remained relevant. The proposed financial support, non-molestation provisions and payment of return flights did not adequately ameliorate the identified risks. Following [2011] UKSC 27, the judge declined to exercise the discretion to order return. The application was dismissed.