L v K Case: Examining Habitual Residence in International Custody Disputes Under Hague Convention

Citation: [2023] EWHC 2766 (Fam)
Judgment on

Introduction

In the matter before the High Court of Justice, Family Division, concerning the case of L v K ([2023] EWHC 2766 (Fam)), pivotal legal principles pertaining to the Child Abduction and Custody Act 1985, the Hague Convention on the Civil Aspects of International Child Abduction, and habitual residence under UK common law were dissected and applied. This article aims to delineate the key legal topics and principles adjudicated within this case and correlate them directly to the relevant summary portions.

Key Facts

The essence of the matter involves a parental dispute regarding the international custody and habitual residence of the child, known as H. The Mother (L) sought an order for H’s return to the United States under the Child Abduction and Custody Act 1985 and the Hague Convention. Conversely, the Father (K) resisted the order based on the contentions that H had become habitually resident in the UK, and that a return would pose a grave risk of harm to H. The child had been residing with the Father in the UK following a mental health crisis of the Mother that compromised her ability to care for H.

Hague Convention and Habitual Residence

The seminal principle in this case concerns the determination of the child’s habitual residence at the time of the alleged wrongful retention by the Father (paragraphs 30-31). This determination hinges upon whether the UK or US is the “correct State” to decide on the child’s future, as per the Supreme Court’s guidance in Re C ([2018] UKSC 8). Thus, if a child acquires habitual residence in a new State before a wrongful act by the travelling parent, the court of that State gains jurisdiction for welfare decisions (Re C, paragraph 34).

Wrongful Retention

The decision in Re C also governed the interpretation of what constitutes wrongful conduct on the part of the travelling parent (paragraphs 32-34). The Supreme Court outlined that an objectively identifiable act or statement of repudiation of the custodial rights of the left-behind parent must be discerned before labeling retention as wrongful (Re C, paragraph 51).

Habitual Residence as a Factual Determination

The factual determination of a child’s habitual residence underscores the integration of the child into the social and family environment of a particular country (Re B [2016] EWHC 2174 (Fam), paragraph 40). The habitual residence concept aligns with the best interests of the child highlighting stability, rather than the permanence of residence (Re R; Re KL; Mercredi v Chaffe, paragraph 41).

Grave Risk Exception

Within the confines of the Hague Convention, the grave risk exception (article 13(b)) becomes operational if the return of the child presents a severe likelihood of harm. Past case law emphasizes that this evaluation is not equivalent to a full welfare analysis but requires concrete risks to the child (paragraphs 51-52).

Outcomes

The court determined that H was habitually resident in the UK because there was adequate integration into a stable family and social setting, despite the temporary nature of his residence at the outset (paragraph 46). The decision was pegged on H’s complete integration into the family unit with his Father and his settled routine and education.

Furthermore, the court commented that if needing to decide, the grave risk defense under article 13(b) of the Hague Convention would have been substantiated. This conclusion was due to the lack of comprehensive evidence demonstrating the Mother’s recovery from substance abuse and mental health issues, notwithstanding the presence of protective measures (paragraph 52).

Conclusion

In L v K, the determination of habitual residence was pivotal to declaring the UK courts as the appropriate forum for adjudicating on H’s welfare. The court incorporated principles from existing jurisprudence, notably, remaining child-centric and treating habitual residence as a determinable fact rather than a mere legal construct. Should the case have necessitated adjudication on article 13(b), the application of the grave risk exception would have been evaluated through the lens of the child’s best interest and proximate risks. This case solidifies the notion that where a child’s habitual residence emerges is where their welfare is judicially ascertained.

Related Summaries