W v Z
[2023] EWHC 469 (Fam)
EC v BM
15 December 2023
[2023] EWHC 3237 (Fam)
High Court
A dad wanted his two sons back from England to the US. A judge decided the kids weren't really 'at home' in the US, so they couldn't be forced to go back. The judge looked at where the kids lived and felt safe, and ruled it was better for them to stay in England.
Key Facts
- •A father (EC) applied for the summary return of his two sons, Fred and Alex, from England to the USA under the 1980 Hague Convention.
- •The mother (BM) left the USA with the children without the father's consent in June 2022 and has been living in England since September 2022.
- •The father's application was resisted on the grounds that the children were not habitually resident in the USA and that their return would expose them to harm.
- •The father did not attend the hearing in person, initially citing a medical condition and later citing threats from the mother's family.
- •The father dismissed his legal team on the last day of the hearing and applied for an adjournment, which was refused.
- •The court considered evidence from multiple witnesses, including the parents, grandparents, friends and nannies.
Legal Principles
Habitual residence under the Hague Convention requires a global analysis of all relevant factors, including the child's integration into a social and family environment.
Re B (A Child: Custody Rights Habitual Residence) [2016] EWHC 2174, Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659, Mercredi v Chaffe (Case C-497/10 PPU) EU:C:2010:829
It is not in the best interests of children to be left without a habitual residence. When a child gains a new habitual residence, they lose their old one.
Re B (A child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4
Article 13(b) of the 1980 Hague Convention prevents a return order if there is a grave risk that the child's return would expose them to physical or psychological harm or place them in an intolerable situation.
1980 Hague Convention, Article 13(b)
A decision on whether to adjourn a hearing is a case management decision, but the test is one of fairness; the application must be granted if not to do so amounts to a denial of justice.
Solanki v Intercity Technology Ltd & Another [2018] EWCA Civ 101
Outcomes
The father's application for the summary return of the children was dismissed.
The court found that neither child was habitually resident in the USA on 9 June 2022. The court determined that the children were habitually resident in Italy during their stay there and subsequently lacked habitual residence for a period after leaving Italy before settling in the UK.
The father's application for an adjournment was refused.
The court considered that a fair trial was possible despite the father's lack of closing submissions, that a delay was not in the children's best interests, and that the father had ample opportunity to prepare his case. The court also considered the prejudice to the mother of a further delay.