T v H

Under Article 7(1)(b) of the 1996 Hague Convention, jurisdiction retained by the State of the child’s former habitual residence after wrongful removal or retention is lost only when all four statutory conditions are satisfied.

Where a return order has been made and active enforcement remains underway, the request for return remains pending. A parent cannot ordinarily defeat the Convention scheme by resisting enforcement until the children become settled in the new State. Settlement and habitual residence are distinct concepts. Settlement requires a holistic assessment of the child’s integration and stability in the new environment.

The father applied for orders concerning the welfare and return of two children who had been taken by their mother from England to Poland in April 2023. Polish proceedings under the 1980 Hague Convention resulted in a final return order, but enforcement had not occurred because the mother resisted implementation.

The issue before the High Court was whether jurisdiction had transferred to Poland under Article 7(1)(b) of the 1996 Hague Convention. The court considered whether the return request remained pending and, in the alternative, whether the children had acquired habitual residence and become settled in Poland.

1. Jurisdiction retained. The court held that Article 7(1)(b) requires four cumulative conditions: acquisition of habitual residence in another State, residence there for at least one year, no return request lodged within that period remaining pending, and settlement in the new environment. It is sufficient that one condition is absent for the original State to retain jurisdiction.
2. Meaning of pending. The word pending must be interpreted consistently with the Convention’s purpose of preventing an abducting parent from obtaining a jurisdictional advantage. A return request remains pending where a return order has been made and active attempts to enforce it continue. The relevant request is the request for return, not merely the proceedings which led to the order.
3. The Polish return order had not been revoked, and enforcement efforts had not been permanently abandoned. The mother’s resistance and further unsuccessful applications did not end the pending status of the return request. The third condition was therefore unsatisfied and jurisdiction remained in England and Wales.
4. Settlement and habitual residence. The court did not finally determine habitual residence or settlement. It nevertheless accepted that the concepts are distinct, and that settlement must be assessed holistically, with the focus on the child’s integration and stability in the new environment. Concealment, deceit and severance of a pre-existing parental relationship are relevant but not determinative.
5. Had settlement required determination, the court would have found that E lacked the emotional and psychological security and stability necessary for settlement, given the continuing concealment and the psychological effects of resisting enforcement. The court did not determine the father’s alternative reliance on the parens patriae jurisdiction.