W v Z
[2023] EWHC 469 (Fam)
L v K
2 November 2023
[2023] EWHC 2766 (Fam)
High Court
Mom wanted her son back from the UK, where he was living with Dad. The judge decided that because the boy was settled in the UK and going to school there, it wasn't right to force him back to his Mom. The judge felt a UK court was the better place to decide where the boy should live, not the court in the USA.
Key Facts
- •Mother (L) seeks return of son (H) from the UK to the US under the Child Abduction and Custody Act 1985 and the Hague Convention.
- •Father (K) resists return, arguing H is habitually resident in the UK and return poses a grave risk of harm.
- •H had been habitually resident in the US until August 2022, then lived in the UK with the Father.
- •Mother's mental health deteriorated significantly in summer 2022, leading to concerns about H's safety and involvement of US social services.
- •H's disclosures revealed instances of alleged physical and emotional abuse by the Mother during her mental health crisis.
- •H travelled to the UK in August 2022 with the Mother's reluctant consent due to her mental health issues.
- •The Mother's mental health has since improved.
- •By July 2023, the Mother demanded H's return; the Father refused.
- •Approximately 7000 text messages between the parents were reviewed as evidence.
Legal Principles
Purpose of the Hague Convention is to determine the correct state for welfare decisions, not to make those decisions.
In the matter of C (Children) [2018] UKSC 8 (“Re C”) at paragraph 3
If a child has obtained habitual residence in a new state by the time of the alleged wrongful act, the court in that state has jurisdiction.
Re C, paragraph 34
A wrongful act requires an objectively identifiable act or acts of repudiation manifesting a denial of the left-behind parent's rights.
Re C, paragraph 51
Determining habitual residence is a factual inquiry centered on the child's integration into a social and family environment; parental intention is relevant but not determinative.
Re B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam)
Under Article 12 of the Convention, if less than a year has passed since wrongful removal/retention, the court orders immediate return.
Article 12 of the Hague Convention
Under Article 13(b) of the Convention, return can be refused if there's a grave risk that return would expose the child to physical or psychological harm.
Article 13(b) of the Hague Convention
Outcomes
The court dismissed the Mother's application for the return of H to the US.
The court found that H was habitually resident in the UK by July 2023, the date of the Father's wrongful act. Therefore, the UK court is the correct forum to determine H's long-term welfare arrangements.