L.M. v N.O.M. (Child Abduction: habitual residence; grave risk; objections; discretion) (Approved)

Factual and Procedural Background

The Applicant and Respondent are the parents of two children, aged 10 and 7. The children were born and lived primarily in Country A. The Respondent later moved to Country B. Following the parties’ divorce, an agreement and court order provided that the children would primarily reside with the Applicant in Country A, with contact visits to the Respondent in Country B. [1][2][3][4][5]

The children travelled to Country B for an agreed access visit in March 2026 but were not returned to Country A. The Respondent accepted retaining them, relying on welfare concerns and the children’s objections. [6]

The Applicant commenced Hague Convention proceedings seeking the children’s return. The proceedings were heard principally on affidavit evidence, with child-assessment reports also considered. [7][8][9][10][11]

Legal Issues Presented

1. Whether the Applicant established the Article 3 requirements for wrongful removal or retention, including the children’s habitual residence, custody rights, and exercise of those rights. [12][13][14]
2. Whether the Respondent established the Article 13 defences of grave risk or children’s objections. [15][16][17][18]
3. How welfare and best-interests principles apply within summary Hague Convention proceedings. [19][20][21]

Arguments of the Parties

Applicant’s Arguments

• The children were habitually resident in Country A and were wrongfully retained in Country B after a temporary access visit. [6][22][23]
• The children’s objections were influenced, lacked context and authenticity, and did not demonstrate sufficient maturity. [24][25][26]
• The evidence did not establish a grave risk, particularly in light of the prior professional assessments and protective resources available in Country A. [27][28]

Respondent’s Arguments

• The Respondent contended that the children remained habitually resident in Country B following an earlier family move. [29]
• He relied on alleged abuse, domestic violence, welfare concerns, and the children’s objections to returning. [30][31][32][16]
• He sought a full and independent investigation into the children’s welfare and argued that their best interests did not support return. [33][34][35]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court emphasised that Hague proceedings are summary return proceedings, not substantive custody or welfare proceedings. The principal purpose is to restore the status quo and allow the courts of habitual residence to determine future arrangements. [102][36][103][104][42]

The Court found that the children were habitually resident in Country A. Although there had been an attempted move to Country B, the children returned to Country A, resumed school and family life there, and remained there for almost three years. Both parents subsequently accepted Country A’s jurisdiction in the divorce proceedings. [23][67]

The Applicant therefore established the Article 3 requirements. The Respondent’s only contested element was habitual residence; the Applicant’s custody rights and their exercise were accepted as satisfied. [13][14][105]

The grave-risk defence failed. The Court identified conflicts in the affidavits but relied on contemporaneous exhibits, prior professional assessments, the Respondent’s agreement to the children’s primary residence with the Applicant, and the availability of protective measures in Country A. [71][74][82][27][28]

The children’s-objections defence also failed. Although both children expressed objections, the Court was not satisfied that their views were authentic, uninfluenced, or sufficiently mature. The assessments indicated that their accounts lacked context and may have reflected information received from the Respondent or his family rather than lived experience. [18][24][25][26][91]

The Court also considered the children’s prior assessments in Country A, which expressed a wish to remain with the Applicant and appeared more consistent with authenticity and wellbeing. [106]

Even if either defence had been established, the Court would have exercised its discretion in favour of return. It was concerned about the children’s isolation, lack of schooling and socialisation, limited activities, and apparent influence by the Respondent and paternal family members. [107][108][109][110]

Holding and Implications

RETURN ORDERED. The Court held that the children were habitually resident in Country A, that their retention in Country B was wrongful, and that neither grave risk nor children’s objections justified refusal of return. [111][112][113]

The children were directed to return promptly to Country A no later than 7 September 2026. The parties were permitted to address undertakings within the specified period. [114]

The direct consequence was the children’s return to Country A, where substantive custody or welfare proceedings could be pursued if required. The decision did not determine final custody arrangements. [35][115]