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The Father was born in the UK and the Mother was born in the USA. They met in 2013, married in the same year and moved to London. The Mother had indefinite leave to remain in the UK and an outstanding application for British Citizenship. 

They had two children born in 2014 and 2019, age 8 and 3 years, respectively, at the time of the hearing. 

In late 2019 the younger child’s school made a referral to the local authority due to concerns regarding the parents’ level of anxiety over the child’s health and the Mother’s day to day care. The parents removed the child from the school and began home schooling. 

In 2021 family moved to the USA. The family moved around in the USA and the Father returned to the UK on a number of occasions. 

In May 2022 the Mother informed the Father that she wished to have a religious divorce. 

On 5 May 2022 the Father took the children to the UK without the knowledge or consent of the Mother. Once they had arrived, the Father emailed the Mother informing her of what he had done, describing the trip to the UK as a ‘visit’ to their grandparents and inviting the mother to join them. 

In September 2022 the Mother filed an application under the 1980 Hague Abduction Convention for the return of the child. 

The Father argued that the children were not habitually resident in the USA at the time of their removal. He also argued that if they were returned to the USA they would be at grave risk of harm and the protective measures offered by the mother would be inadequate. 

Return ordered. The children’s habitual residence was in the USA and the Father failed to make out the Article 13(1)(b) exception to return. 

Habitual Residence - Art. 3

Prior to August 2021 the children had only lived in the UK where they were born. They had a high level of integration and socialised largely within the Orthodox Jewish community and with wider paternal family members, who lived nearby.

The decision to go the USA in August 2021 was a joint decision of the parents, although each parent had a different view on how long they would stay. 

As time went on the Father took no steps that indicated the stay in the USA was time limited and supported the increasing social and family integration of the children, for example by considering schools in the USA.

Whilst the family moved a number of times in the USA, the children had the continuity and stability of the mother remaining their primary carer and they had integrated there. Therefore their habitual residence was in the USA. 

Grave Risk - Art. 13(1)(b)

The Father argued that he took the children to the UK out of concern for their welfare as a result of the Mother’s emotional and physical abuse towards them.

Whilst the Court recognised that there was a risk, the risk was not grave in the current situation and looking forward. Even if this was wrong, the list of protective measures proposed by the mother were sufficient to ameliorate any risk.