A recent case K -v- M [2024] EWHC 3081 (Fam) has highlighted factors in the crucial importance of establishing a child’s habitual residence when applying under 1980 Hague Convention for return of a child.
The Court Case
In this case, the father of an 18-month-old boy applied for his return to the USA following the mother having taken the boy to the UK following the breakdown of the parents’ relationship.
The father thought that the mother was taking their son to the UK for a 2-week holiday; however the mother’s position at the Court hearing was that she intended to remain in the UK with the child.
The mother opposed the boy’s return to the USA arguing: –
- That their son was now habitually resident in the UK.
- That the father had consented to or subsequently acquiesced to the relocation.
- That the boy would be at grave risk of harm or otherwise placed in an intolerable situation were he to be returned to the USA.
Habitual Residence
The Court considered the question of habitual residence. The Court looked at the factors that would establish habitual residence namely that there must be some degree of integration in the social and family environment and considered factors that could demonstrate this. As at the time the boy had left the USA with his mother, his place of habitual residence was clearly the USA. The mother suggested that on arrival to the UK he became habitually resident there (habitual residence can in certain situations be obtained instantaneously).
Having considered the factors the Court decided that this was not a case where habitual residence could have changed over a little as 2 weeks from the time that the parents’ son arrived in the UK to when the mother communicated to the father that she intended to stay there.
Likewise, when considering whether the father had consented to his son remaining in the UK the Court considered whether he had clearly and unequivocally consented? The Court concluded that he had not.
The third limb of opposition by the mother was that to return the boy to the USA would place him at grave risk/or his return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The Court noted that any risk must be “grave”. When considering whether it would place the child in an intolerable situation the Court referenced how it would not be making a return order for the child to the USA if it meant that (because of visa issues) his mother could not go with him. However, in this case the mother could go to the USA with her son and the father had put forward practical proposals for the provision of accommodation for mother and child.
The Court recognised that it would be an extremely difficult situation for the mother to return with their son to the USA but nevertheless found that the boy had been unlawfully retained in the UK; that the father had not consented to or subsequently acquiesced to this and that whilst if the child returned to the USA without his mother it would put him in an intolerable situation, returning to the USA with his mother would not on balance put him in an intolerable situation. The Court ordered the boy to be returned to his country of habitual residence – the USA, provided his mother was granted entry into the USA and provided the father honoured the practical arrangements for accommodation and other issues.
We appreciate that situations arise that become very difficult and at Stephens Scown we have specialist children solicitors to help you look at all the options and help you find a solution. Please get in touch today on: 0345 450 5558 or: enquiries@stephens-scown.co.uk