K v M

Under the 1980 Convention, habitual residence is determined from all circumstances specific to the child. Parental intention is relevant but not determinative. A short visit will not ordinarily establish a new habitual residence where the child’s principal family and social links remain in the original State.

Consent under Article 13(a) must be clear and unequivocal. Acquiescence concerns the left-behind parent’s actual subjective intention after removal or retention. Under Article 13(b), the court assesses the future situation on return, assumes an alleged risk at its highest without conducting a full fact-finding exercise, and considers protective measures. Separation of a very young child from the primary carer for an indeterminate period may be intolerable. A conditional return order may be made where adequate safeguards are secured.

K, the father of an eighteen-month-old child, applied for the child’s summary return to the USA under the 1980 Hague Convention. M, the mother, had brought the child from the USA to the UK with the father’s consent for an alleged short period but did not return.

M argued that the child had become habitually resident in the UK, that K had consented to or acquiesced in the retention, and that return would expose the child to grave risk of harm or an intolerable situation. The principal issues were the child’s habitual residence, the Article 13(a) defence, and the Article 13(b) defence.

1. Habitual residence. The child remained habitually resident in the USA when retained in the UK. Habitual residence required consideration of all circumstances, including duration and conditions of the stay, reasons for the move, nationality, family and social relationships, and durable ties. Parental intention was relevant but not determinative. The child’s dual nationality and close maternal family links in the UK did not outweigh his previous life in the USA, the short duration of his first UK visit, and the continuing links with his father and paternal family in the USA.
2. Consent and acquiescence. The mother had not established that the father clearly and unequivocally consented to anything more than a two-week break. His knowledge of a one-way ticket and suspicions that the mother might not return did not amount to consent. Nor did the evidence establish subsequent acquiescence. The Article 13(a) exception therefore failed.
3. Grave risk and intolerability. The court considered the future position on return and did not conduct a full fact-finding exercise concerning the allegations of domestic abuse. The risk was assessed at its highest, followed by consideration of protective measures. The possibility of the mother’s arrest or prosecution, considered alone, did not satisfy Article 13(b). Nor did the proposed financial and accommodation difficulties establish the threshold if mother and child returned together.
4. However, returning the eighteen-month-old child without his primary carer would create an intolerable situation because the period of separation would be indeterminate. The return order was therefore conditional on the mother being permitted to enter the USA and on safeguards being secured, including accommodation, financial support of $800 per month, non-attendance at the mother’s home, no punishment proceedings supported by the father, and no separation of mother and child pending the first inter partes hearing.
5. The child was ordered to return to the USA provided those conditions were satisfied and a corresponding consent order was filed in the US custody proceedings.