V (A Child) (Abduction: Return following Interim Removal from Taking Parent), Re

In proceedings under the 1980 Hague Convention, a child’s habitual residence is determined by a fact-sensitive assessment of the child’s integration in the relevant social and family environment. The inquiry must focus on the child’s current situation and compare the practical connections with each competing State.

For the Article 13(2) child-objections exception, the gateway question is simply whether the child objects to return and has sufficient age and maturity for the views to be taken into account. A preference or wish is not necessarily an objection. If the gateway is crossed, the discretion is at large and must balance the child’s views, welfare and Convention policy.

The father sought the return of his nine-year-old daughter to the Netherlands under the 1980 Hague Convention. The child had lived with him in the Netherlands for about 17 months before the mother removed her first to France, then Ukraine and finally England.

The father alleged that the removal breached his custody rights. The mother did not substantively oppose the application. The court considered habitual residence, rights of custody, consent, grave risk and the child-objections exception. The central issue was whether the child objected to returning to the Netherlands and, if so, how the court should exercise its discretion.

1. Wrongful removal. V was habitually resident in the Netherlands when removed. The court applied the factual and comparative approach to habitual residence, considering her 17 months’ residence, schooling, friendships and integration in Amsterdam, together with the absence of a settled home in England. The mother’s intentions were relevant but not determinative.
2. The father had rights of custody under Ukrainian law, preserved through changes of habitual residence under Article 16 of the 1996 Hague Convention, and in any event under section 2(1) of the Children Act 1989. He was actually exercising those rights because V was living with him and he wished that arrangement to continue. The removal was surreptitious, non-consensual and wrongful under Article 3.
3. Article 13(a) was not engaged. Any earlier consent to V living in the Netherlands was not subsisting when the mother removed her. Article 13(b) was also not established: there was no evidence of grave risk in returning V to her father, whereas the evidence suggested risk in the mother’s care.
4. V’s preference for her English school and her wish to remain in England with her father did not amount to an objection to returning to the Netherlands. Her expressed views concerned the school and the prospect of living with her father, rather than opposition to return as such.
5. If the Article 13(2) gateway had been crossed, the discretion would nevertheless have been exercised in favour of return. Relevant considerations included the surreptitious abduction, the prompt issue of proceedings, the limited weight of the views of a nine-year-old child, the stability previously enjoyed with her father, the risks in her current environment and the mother’s stated intention to return to Ukraine.
6. An order was made for V to return to the Netherlands with her father. The port alert was varied to permit the parties’ departures and the return of their travel documents. Future welfare disputes were left to the courts of the Netherlands.