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E v D [2022] EWHC 1216 (Fam)

MacDonald J made an order for the summary return of a child in 1980 Hague Convention proceedings, holding that the child was habitually resident in Malta on the date of his retention and rejecting the father’s “defences”.

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Background

The mother, E, is Latvian and the father, D, a dual Canadian/ British national. They met in 2014. V, now 5 was born in 2016. Until he was 17 months old the family lived in England. They then lived in Canada between November 2017 and May 2019 before moving to Malta, where V lived with his parents until F brought him to England on 21st December, although they did spend a 12 week period in Canada in summer 2020. The family had residence permits for Malta and leased a home; the father's business was established there and V went to nursery and started school in September 2021, and was involved in a football club. By late December the parents' relationship had broken down.

Before coming to England in December, father enrolled V in a school in England, giving the school no details at all of the mother. Meanwhile V remained on roll at the Maltese school, and said no goodbyes before the trip to England.

Mother travelled separately to England on 23rd December, returning to Malta on 1st January. V was supposed to return to school there on 4th January. Father did not return with V and unilaterally terminated the tenancy on the family home in Malta. On 7th February he obtained a child arrangements order and prohibited steps order at Central Family Court, having failed to mention that the child had lived outside the jurisdiction from 2017 until a few weeks before.

The proceedings

The mother sought V's return to Malta. The father claimed:

• V was habitually resident in England and Wales at the relevant date so the retention was not wrongful;

• The mother had consented to V moving from Malta to England in late December;

• The mother had acquiesced in V being retained in England;

• If returned to Malta V would be at grave risk of harm, both physical and emotional;

He said that he would not return to Malta if a return order was made, but later said that he would, and that if V had to return, he should take him.

Law

At §19-33 MacDonald J summarises the well-established principles relating to habitual residence and the father's Hague "defences".

Discussion and conclusion

• HR: the relevant date was 4th January, when father retained V. V was plainly HR in Malta on 21st December, having acquired a degree of social and family integration. The degree of integration acquired in England by 4th January was limited and V remained habitually resident in Malta.

• There was no evidence that mother had consented; the father had hidden his intentions from her, for example by ensuring that the English school had no knowledge of her.

•  There was no proper basis for concluding that she had acquiesced.

• There was no evidence to support father's contention that V would not be physically safe with mother or that he'd be at risk of emotional harm. Accordingly there was no need to consider protective measures.

• The court was concerned about father's conduct towards V, including making a video of himself questioning the child inappropriately to obtain evidence against the mother. His statement was a deeply unpleasant character assassination of the mother. He had wrongfully retained V here and he has a passport for a third country, Canada. Accordingly V should travel back to Malta with the mother and live with her until the first hearing of any welfare proceedings in that jurisdiction.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII