FG (A Child: Return Order to Lithuania, Re

Habitual residence under the 1980 Hague Convention is a question of fact requiring a broad, global and comparative assessment of the child’s circumstances. Neither parent bears a burden of proof on that issue. The relevant date for wrongful removal is the date of the alleged removal or retention.

Where the applicant proves habitual residence abroad, custody rights and their actual exercise, removal is wrongful. The Article 12 settlement defence is unavailable where proceedings begin within one year. An Article 13(b) defence requires a grave risk to the child, but protective measures available in the requesting state may sufficiently address that risk.

The father applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the return of his six-year-old son to Lithuania. The mother opposed the application, asserting that the child had always been habitually resident in the United Kingdom. Alternatively, she relied on settlement, absence or non-exercise of custody rights, acquiescence and grave risk under Articles 12 and 13.

The central issues were the child’s habitual residence on 28 May 2025, whether the father had custody rights which he was exercising, and whether any Convention defence was established.

1. Habitual residence. The court held that habitual residence was to be determined neutrally, without a burden of proof on either parent. It required a global and comparative assessment of all relevant circumstances, including the child’s physical presence, the duration and regularity of stays, schooling and childcare, family and social relationships, parental intentions, stability and integration. The evidence pointing to Lithuania was substantially more cogent. The child was habitually resident there on 28 May 2025.
2. Relevant date and wrongful removal. Applying Re S (Child Abduction: Delay) and Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention), the relevant date was 28 May 2025, when the child left Lithuania. Under Lithuanian law and the parents’ 2022 court-approved agreement, the father had custody rights. His telephone and direct contact demonstrated that he was exercising them. The removal therefore breached Article 3.
3. Article 12 and Article 13(a). Proceedings were commenced less than one year after removal, so the settlement defence did not arise. The mother produced no evidence capable of establishing acquiescence.
4. Article 13(b). The court applied the high threshold in Re E (Children) (International Abduction), Re S (A Child) (Abduction: Rights of Custody) and Re IG (A Child) (Child Abduction: Habitual Residence: Article 13(b)). Although the domestic-abuse allegations were taken at their highest, the court was sceptical that they established grave risk or intolerability. In any event, proposed protective measures could be mirrored by orders in Lithuania. The Lithuanian authorities were presumed equally capable of protecting the child.
5. Disposition. A return order to Lithuania was made. Questions concerning the child’s long-term care were left to the Lithuanian court. Disclosure of the judgment and papers to the Lithuanian courts and relevant authorities was permitted.