W and E (Habitual Residence), Re

In a Hague Convention return application, habitual residence is a child-focused question of fact. The court must evaluate all relevant circumstances, including the child’s social and family integration, stability of residence, parental intentions and practical connections. No fixed period of residence or parental intention to remain permanently is required.

An objection under Article 13 is assessed through a low-threshold gateway, but a preference is insufficient. Under Article 13(b), the court must assess the concrete future situation on return, the nature and severity of any grave risk, and the efficacy of protective measures. Domestic abuse and the accompanying effect on a primary carer’s mental health may be assessed cumulatively.

The father applied under the 1980 Hague Convention for the summary return of his two children from England to New Zealand. The children had travelled to England with their mother for an agreed six-month period, but the mother later decided that neither she nor the children would return.

The mother disputed wrongful retention on the basis that the children had become habitually resident in England. She also relied on their objections and on Article 13(b), alleging domestic abuse, mental-health consequences and a grave risk of psychological harm or an intolerable situation on return.

The central issues were the children’s habitual residence at 17 May 2024, whether either child satisfied the Article 13 objection gateway, and whether return was precluded by Article 13(b).

1. Habitual residence. The children’s habitual residence was a factual question centred on their lives and integration in their social and family environment. The enquiry was open-ended and was not governed by a fixed period, a requirement of permanent residence, or parental intention alone. The court considered the children’s isolated life in New Zealand, the loss of their former home, their maternal relationships and community in England, their activities, the mother’s improved condition, their dual nationality and the presence of their family dog.
2. Although the children’s stay in England was intended to last six months and the father opposed an extension, those matters were outweighed, on the fine balance of the case, by the children’s degree of integration in England. The conclusion was expressly fact-specific and was not authority for the proposition that habitual residence changes through passage of time alone.
3. Children’s objections. Both children had sufficient age and maturity for their views to be considered. The Article 13 objection gateway was low and required a straightforward assessment. Ed’s strong and authentic opposition amounted to an objection. Will’s views amounted to an equivocal preference rather than an objection. Had this been determinative, the judge would have exercised the discretion against separate treatment of the brothers and ordered their return.
4. Article 13(b). The mother established the exception on the balance of probabilities. The court had to assess the future situation on return, without conducting a final fact-finding exercise, while analysing the nature and severity of the potential risk and the protective measures available. Past conduct remained relevant, but was not conclusive. The allegations of domestic abuse, the mother’s reactive depression and anxiety, her likely deterioration on return, Ed’s vulnerability and opposition, and the lack of effective support had to be assessed cumulatively.
5. The father’s proposed protective measures addressed many concerns but did not adequately mitigate the combined vulnerability of the mother and children. There was a significant question whether the mother would become well enough to return. The application for summary return was dismissed.