D v E (Habitual Residence; Consent; Acquiescence)
[2023] EWHC 1941 (Fam)
A and B (Children: Return order: Article 13(a) defence: 1980 Hague Convention), Re
30 September 2024
[2024] EWHC 2473 (Fam)
High Court
Two children lived mostly in Hungary but were temporarily in the UK. The father acted badly and tried to stop the mother from taking them back to Hungary. The judge decided the children should go back to Hungary because that's where they truly belong.
Key Facts
- •A (7) and B (2) are the subject of a return order application to Hungary under Article 12 of the 1980 Hague Convention.
- •The father resists the return, arguing habitual residence is in the UK and the mother consented to the children remaining there.
- •The parents are of mixed nationalities (British/Nigerian father, Hungarian mother). Children hold dual nationalities.
- •The family moved frequently between the UK and Hungary before a January 2024 move to the UK.
- •The parents' relationship was strained, with allegations of abuse and control by the father, and allegations of infidelity by the mother.
- •The mother claims the UK move was temporary; the father claims it was permanent.
- •The mother withdrew her consent to the children remaining in the UK by March 2024.
Legal Principles
Habitual residence determination under the Hague Convention focuses on the child's integration into a social and family environment, considering factors like daily life, family, interests, and proximity.
Re B (A child) (Custody Rights: Habitual Residence) [2016] EWHC 2174; Re B (A child) (Reunite International Child Abduction Centre and others Intervening) [2016] AC 606; Re M (children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105; Re R (a child) [2015] EWCA Civ 674
In assessing consent under Article 13(a), the court considers whether the remaining parent clearly and unequivocally consented to the removal, examining words and actions in the context of family life, not contract law. Consent must be real, informed, and communicated.
Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139; Re P-J (Children) (Abduction: Consent) [2009] EWCA Civ 588; Re B (A Minor) (Abduction) [1994] 2 FLR 249; T v T (Abduction: Consent) [1999] 2 FLR 912
The court has discretion to return a child under Article 13, considering the overriding objective of protecting children from the harmful effects of wrongful removal.
Re M and another (Children) (Abduction: Rights of Custody) [2007] UKHL 55
Outcomes
The children's habitual residence was found to be Hungary.
The court found that despite some time in the UK, the children's lives were more deeply integrated in Hungarian society, supported by evidence of schooling, family support, and the mother's ongoing medical studies there. The father's assertion of a permanent UK move was deemed unreliable.
The mother's consent to the children remaining in the UK was deemed withdrawn by March 31, 2024.
The court found the father's evidence to be evasive and unreliable, contrasting it with the mother's consistent and credible account of the temporary nature of the UK stay and the abusive pressure exerted by the father. The father's actions and attempts to control the mother were significant factors.
A return order to Hungary was issued.
The court concluded that the children's best interests required their return to their habitual residence in Hungary, given the findings on habitual residence and the withdrawal of consent. Considering the wrongful retention since March 31, 2024, the court did not need to further analyze the validity of any initial consent.