S v O

In a Hague Convention return application, consent to a holiday is not consent to permanent removal or retention. Consent must be clear and unequivocal, assessed from the reality of family life and all the circumstances.

An Article 13(b) defence requires a focused two-stage assessment. The court must first decide whether the allegations, if true, could establish a grave risk of harm or an intolerable situation. It must then determine whether protective measures would sufficiently address that risk. Where protection depends on a proposed return arrangement that is uncertain or impractical, the defence may be established.

A child’s objection may relate to the country of return as well as the parent with whom the child would live. If the gateway is satisfied, the court has a broad discretion which must balance Convention objectives, the child’s views and welfare considerations.

The applicant sought the summary return to Lithuania of three children under the 1980 Convention. The children had lived in Lithuania with the respondent mother under a Lithuanian court-approved settlement agreement. They came to England in June 2024. The mother said this was for the summer holidays; the father said she had agreed that they should live with him in England.

The mother alleged wrongful retention and opposed the father’s reliance on consent, while the father relied on Article 13(b) allegations concerning the mother’s care. The oldest child, aged nine, expressed objections to returning. The central issues were whether the mother had consented, whether the Article 13(b) defence was established, whether the oldest child satisfied the objection gateway, and how the court should exercise its discretion.

1. Consent. The mother had not consented to the children being removed to live in England. She had agreed only to their coming for the summer holidays. The father’s evidence was inconsistent, and the older child’s contemporaneous understanding supported the mother’s account. The children’s belongings also supported a temporary visit rather than permanent relocation.
2. Child objections. The oldest child objected to returning to Lithuania, rather than merely preferring to remain with her father. Her views were informed by a marked contrast between her experiences in England and Lithuania. Although some views about her mother were likely influenced by the father, the objection remained genuine. At nine, and being able to express herself well, she had attained the necessary age and maturity.
3. Article 13(b). The allegations of alcohol misuse, inadequate supervision and physical and verbal abuse were detailed and substantial. The court could not confidently discount them. If true, return to the mother’s care would create a grave risk of physical or psychological harm and an intolerable situation. Proposed measures involving the mother, relatives, undertakings and social services were insufficient. A return with the father in suitable accommodation would provide adequate protection, but his last-minute proposal lacked practical detail and was not a realistic basis for returning the children.
4. Discretion and outcome. The Convention objective and the recent Lithuanian order strongly favoured return. However, the oldest child’s clear views, her circumstances in England, the disruption of return and the uncertainty of the proposed arrangements outweighed those considerations. The court exercised its discretion to refuse return of the oldest child. The younger children were also not returned because returning them alone would leave them vulnerable and separate them from their sister. The decision was confined to summary return and did not determine the future welfare proceedings.