UK High Court Rules on Habitual Residence and Protective Measures in International Child Abduction Case

Citation: [2023] EWHC 3237 (Fam)
Judgment on

Introduction

In the case of EC v BM [2023] EWHC 3237 (Fam), the UK High Court of Justice was tasked with determining the habitual residence of two young children for the purpose of adjudicating a request for their summary return to the USA under The 1980 Hague Convention On The Civil Aspects Of International Child Abduction (“the 1980 Convention”). The case provides an illustration of the complex considerations that can arise when assessing a child’s habitual residence in international child abduction cases and elucidates on the application of protective measures under Article 13(b) of the 1980 Convention.

Key Facts

The case involved two children, Fred and Alex, who were taken from the USA to England by their mother without the consent of the father. The parents, while married, were in the midst of marital strife and the mother filed for divorce in England and Wales. The father, a dual Russian, Ukrainian and US citizen, pursued an application pursuant to the 1980 Convention seeking the children’s return to the USA, arguing they were habitually resident there. The mother, a Ukrainian mother with a US Green Card, contested the children’s habitual residence and raised defenses under Article 13(b) of the 1980 Convention, regarding the risk of harm to the children if returned.

In determining habitual residence, the court referred to the principles articulated by the Supreme Court in cases such as Re B (A Child: Custody Rights Habitual Residence) [2016], and Mercredi v Chaffe, emphasizing the need for a “global analysis” and considering the child’s degree of integration into a social and family environment. The court considered various factors, including the intentions of the parents, the duration and quality of the children’s presence in the respective countries, and the stability of the family unit.

The court also examined the protective measures available under Article 13(b). This assessment was based on the precedent established in Re C (Children) (Abduction: Article 13(b)) [2019] regarding the gravity of risk of harm or intolerability of the situation for the child, and how compliance with undertakings could be enforced. The updated Practice Guidance of the President of the Family Division, highlighted by Re T (Abduction: Protective Measures: Agreement to Return) [2023], was also considered, particularly around the enforcement of undertakings in the requesting jurisdiction.

Outcomes

The court concluded that the father failed to establish on a balance of probabilities that either child was habitually resident in the USA on 9 June 2022. It found that a period of stability and integration into a social life in Italy potentially established habitual residence there. However, upon leaving Italy for the USA, the children lacked habitual residence during the transient period that followed.

The court recognized the risk of separation from the mother if returned to the USA, but found itself unable to fairly assess the mother’s Article 13(b) defense due to the lack of the father’s legal representation at a critical juncture. As such, the court did not make a definitive ruling on Article 13(b), but the findings on habitual residence negated the need to do so.

Conclusion

The EC v BM case exemplifies the nuanced analysis required in international child abduction cases. The determination of habitual residence is a complex and fact-sensitive task that involves a holistic examination of the child’s circumstances. The case also underscores the importance of clear evidence regarding the enforceability of undertakings, critical to the assessment of defenses under Article 13(b) of the 1980 Convention. Through this detailed examination, the judgment addresses both the micro-level family dynamics as well as the macro-level legal frameworks guiding cross-border child custody disputes.

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