EF and GH (Children) (1980 Hague Child Abduction Convention), Re

Under the 1980 Hague Convention, removal or retention is wrongful only if it breaches custody rights in the state of the child’s habitual residence at the relevant date. A permitted move may become wrongful through repudiatory retention, but this requires an objectively identifiable act or statement manifesting a denial of the other parent’s custody rights. Habitual residence is a child-focused factual inquiry. Integration may occur quickly, and parental intention is relevant but not determinative.

Consent may be inferred from conduct and assessed according to the realities of family life. If a defence under Article 13 is established, the discretion whether to order return is at large. Article 13(b) requires a forward-looking assessment of grave risk, including the cumulative effect of alleged abuse and mental-health difficulties and the effectiveness of protective measures.

The father sought the summary return of his two daughters to Iowa under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention. The family had lived in Iowa before travelling to England in December 2023. The mother and children remained in England, and the father commenced divorce and custody proceedings in Iowa.

The father alleged that the move had been temporary, or that the children were wrongfully retained when the mother took steps indicating a permanent relocation or stated on 10 April 2024 that they would not return. The mother contended that the parties had agreed to permanent relocation. Alternatively, she relied on consent or acquiescence and on Article 13(b), based on alleged domestic abuse and her mental health.

The central issues were whether Article 3 was engaged, the children’s habitual residence at the relevant dates, and whether any Article 13 defence and discretionary refusal of return were established.

1. Article 3. The removal on 9 December 2023 was not wrongful. The mother genuinely believed that the parties had agreed to permanent relocation, and the father had done nothing to disabuse her of that belief. There was no dishonesty or deception.
2. Repudiatory retention and consent. Repudiatory retention is legally possible where a travelling parent objectively manifests a denial of the left-behind parent’s custody rights. On the facts, the father’s conduct and omissions established consent to the permanent relocation. There was therefore no repudiatory retention or wrongful retention on 10 April 2024.
3. Habitual residence. Habitual residence is a child-focused factual inquiry concerned with integration in the social and family environment. The children’s habitual residence changed swiftly after arrival in England, and had changed by 24 January 2024 and, on balance, by 4 January 2024.
4. Alternative defences. If Article 3 had been engaged, the mother had established acquiescence under Article 13(a). She also established Article 13(b). Taking the allegations of abuse at their highest and considering them cumulatively with the mental-health evidence, the court could not confidently discount a grave risk of harm on return. The proposed protective measures did not adequately address that risk.
5. Discretion. The discretion was at large. The children had been in England for a year, so the policy supporting speedy return was relatively weak. Their welfare and the availability of fuller evidence in England pointed against return. The application was dismissed.