Caselaw Digest
Caselaw Digest

S (1980 Hague Convention; Habitual Residence; Article 13), Re

[2023] EWHC 2717 (Fam)
A mom wants her daughter back from the UK, but the judge said no. The judge saw evidence the mom was mean to the daughter, and the daughter doesn't want to go back. So the daughter gets to stay in the UK.

Key Facts

  • S, a 9-year-old girl with dual British and Japanese nationality, was taken from Japan to England by her father in June 2022.
  • The mother seeks S's return to Japan under the 1980 Hague Convention.
  • The father opposes the return, citing several defenses including a change in habitual residence and a grave risk of harm to S if returned to Japan.
  • There is evidence of a volatile relationship between the parents, including allegations of abuse and threats by the mother towards both S and the father.
  • Extensive video and audio recordings, WhatsApp messages, and witness statements were presented as evidence.
  • S expressed a strong desire to remain in England.

Legal Principles

Wrongful removal or retention under Article 3 of the Hague Convention requires a breach of custody rights and the exercise or potential exercise of those rights.

1980 Hague Convention, Article 3

Habitual residence is a question of fact, focusing on the child's degree of integration into the social and family environment.

Various case laws including Re LC, Re B, Re M, Re A

Consent to removal or retention must be clear, unequivocal, and communicated to the removing parent; it is assessed based on the words and actions of the remaining parent and not contractual terms.

Re G (Consent; Discretion) [2021] EWCA Civ 139

Acquiescence requires the left-behind parent to have either subjectively consented or passively gone along with the child's continued presence in the new location; the outward behaviors must clearly indicate non-assertion of the right to return.

Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72, JM v RM

A child's objection to return must be to the country of habitual residence, though it can be inextricably linked to an objection to a specific parent.

Re M (Republic of Ireland)

The Article 13(b) defense requires proving a grave risk that the child's return would expose them to physical or psychological harm or an intolerable situation; the court considers the cumulative effect of allegations and the availability of protective measures.

Re A (Children), Re E (Children), Re IG, Re C

The court has discretion to refuse a return order if an Article 13 exception is met.

Re M (Abduction: Zimbabwe) [2007] UKHL 55, Re G (Abduction: Consent/Discretion)

Outcomes

The application for the summary return of S to Japan is dismissed.

The court finds that S's habitual residence had shifted to England by October 2022. Even if not, the mother acquiesced in S remaining in England, S objects to returning to Japan due to the mother's abusive behavior, and there is a grave risk of harm to S if returned to Japan.

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