CJ v KJ

Habitual residence depends principally on voluntary settlement in a country for a settled purpose over an appreciable period. Temporary absences and restricted immigration status do not prevent habitual residence where they are consistent with the settled plan and the stay is lawful.

Consent under Article 13 of the Hague Convention must be clear, unequivocal and informed, but may be inferred from words and conduct. Acquiescence depends on the wronged parent’s actual state of mind, assessed primarily from contemporaneous conduct. Once established, it cannot ordinarily be withdrawn retrospectively.

Where an Article 13 defence is proved, the court has a discretion not to order return. Grave risk may arise from the possible separation of a child from the sole or primary carer during foreign proceedings.

The applicant father sought the summary return of his four-year-old daughter from Wales to the United States under the Hague Convention, incorporated into domestic law by the Child Abduction and Custody Act 1985. The child had lived with her mother in Wales since October 2004, after the parents’ relationship ended during a visit.

The mother argued that the child was not habitually resident in the United States and relied alternatively on consent, acquiescence and grave risk under Article 13. The father disputed each defence. The central issues were the child’s habitual residence at the date of the alleged retention, whether the father had consented to or acquiesced in the retention, and whether return should nevertheless be ordered.

1. Habitual residence. The child was habitually resident in the United States on 27 December 2004. The parents had moved there with a settled intention to make it their permanent home, bought a home, pursued employment and immigration arrangements, and remained there for an appreciable period. The mother’s requirement to leave every 90 days did not prevent habitual residence. Her absences were temporary and advanced the primary intention of settling in the United States. The court identified the essential elements as settled intention, steps in implementation and sufficient duration.
2. The family’s earlier habitual residence in Wales had been lost on the move to the United States. The temporary return to Wales for a family wedding did not create a second habitual residence or prevent acquisition of the new one. In the circumstances, the mother could not unilaterally alter the child’s habitual residence.
3. Consent. Consent under Article 13 had to be clear, unequivocal and informed, but it could be inferred from conduct. The parents had previously agreed that the child would remain with the mother if they separated. In December 2004 the father knew that the mother would remain in Wales, accepted that position despite pressure to oppose it, and made plans for a future without the mother and child. His later change of mind did not withdraw the consent on which the mother was entitled to rely.
4. Acquiescence. The question was the father’s subjective intention, assessed in all the circumstances. His contemporaneous words and conduct were more reliable than later assertions. He knew the retention was wrongful but did not seek the child’s return. Instead, he encouraged the mother to continue her life in Wales and represented that his interest was contact rather than summary return. The mother was thereby led to believe that he would not enforce a right to return, and justice required the court to hold that he had acquiesced.
5. Grave risk and discretion. Financial loss, disrupted schooling and loss of friendships did not themselves establish grave risk. However, if the mother could not lawfully remain in the United States throughout the proceedings, separation from her, as the child’s sole or primary carer, would expose the child to psychological harm. The father’s proposed financial provision was also insufficient for modest living. Since consent and acquiescence were established, and the Article 13 discretion was engaged, the court declined to order return. The application for return was refused.

Not stated in the judgment.