Key Facts
- •Father (F) applied for the return of three children (aged 9, 7, and 5) from England to British Columbia, Canada, under the 1980 Hague Convention.
- •Mother (M) opposed the application, citing wrongful retention, habitual residence, acquiescence, grave risk of harm under Article 13(b), and the children's objections.
- •M was diagnosed with Stage 3C colorectal cancer, and the family moved to England for her treatment.
- •The parties disagreed on whether the move to England was temporary or permanent.
- •F returned to Canada in May 2022 and initiated Hague Convention proceedings.
- •The children were happy in England and had integrated into the school system.
- •M stated she would not return to Canada for treatment, even if ordered.
Legal Principles
Wrongful retention under Article 3 of the Hague Convention requires a breach of custody rights and those rights being exercised or would have been but for the removal/retention.
Article 3, 1980 Hague Convention
Habitual residence is determined by analyzing a child's situation and connections with a state to ascertain the requisite degree of integration.
Re B (A Child)(Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam), Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) 2020 EWCA Civ 1105, Re A [2023] EWCA Civ 639
Acquiescence requires a wrongful retention and subsequent acceptance of that retention by the other party.
Not explicitly cited but implied in the judge's reasoning.
A child's objection under Article 13 of the Hague Convention is a factor to consider but not determinative; it requires a genuine objection, not just a preference.
B v P [2017] EWHC 3577
Article 13(b) defence requires demonstrating a grave risk of physical or psychological harm or an intolerable situation upon return; the court considers protective measures and the possibility of amelioration.
Re IG [2021] EWCA Civ 1123
Outcomes
The application for a return order was refused.
Wrongful retention was not established; habitual residence was found to be in England; and Article 13(b) defence was made out due to the grave risk of harm to the children if separated from their mother during her cancer treatment.
A child arrangements order was made outlining contact arrangements between the children and F.
Agreement reached between the parties regarding holiday and half-term contact.