S and T (Children: Return to Italy), Re

In a summary application under the 1980 Hague Convention, removal may be wrongful where consent was procured by material deception. Consent must relate to the removal actually contemplated by both parents and must be clear, real and unequivocal.

Where travel was agreed to be temporary, a later repudiation of that arrangement may constitute wrongful retention before the agreed return date. Habitual residence remains a factual question viewed from the child’s perspective. Temporary residence, even with some social integration, may not displace the child’s established habitual residence.

An Article 13(b) defence requires assessment of the alleged risk at its highest, followed by consideration of protective measures. A return order may be made where adequate undertakings, separate living arrangements, financial support and protection by the requesting State sufficiently address the risk.

The father sought the summary return of his two children from England and Wales to Italy under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention. The children had lived in Italy until April 2024, when the family travelled to London.

The father said he had agreed only to a temporary move until November 2024 and that the mother had deceptively planned a permanent relocation. The mother said the move was permanent, or alternatively that the children would face a grave risk of harm if returned.

The central issues were whether the removal or subsequent retention was wrongful, whether the children had become habitually resident in England and Wales, and whether the mother had established the Article 13(b) exception.

1. Return order. The court ordered the return of both children to Italy during the Easter holidays.
2. Wrongful removal and consent. The mother had planned a permanent relocation, arranged accommodation and nursery provision, concealed relevant matters and intended to retain the children in London. The removal therefore breached the father’s custody rights under Article 3. The material deception meant that any apparent consent was invalid. Consent must concern the removal within the contemplation of both parents and must be clear, real and unequivocal.
3. Repudiatory retention. Alternatively, the move had been agreed as temporary until November 2024. The mother repudiated that arrangement by arranging a preparatory-school place for S without the father’s knowledge on 1 May 2024. Applying Re C, that amounted to wrongful retention. Alternative dates were 8 May 2024, August 2024 or November 2024.
4. Habitual residence. Even assuming a lawful temporary move, the children remained habitually resident in Italy. Their stay in London was temporary, their Italian home and connections remained, and any London integration did not outweigh their deeper integration in Italy.
5. Article 13(b). The court could not determine all disputed allegations of domestic abuse in this summary process. It therefore assessed the risk at its highest and considered protective measures. The father’s undertakings, separate accommodation, financial support, restrictions on contact and passport arrangements were sufficient. A return to the former matrimonial home would have been oppressive, but return to Italy without that requirement would not place the children in an intolerable situation.
6. The court declined to use its Article 11 jurisdiction under the 1996 Hague Convention to determine where in Italy the mother should live, since that issue was not an urgent measure necessary to prevent irreparable harm.