E v E

Habitual residence is determined from all the circumstances. A child must be present voluntarily, for a settled purpose and settled intention, for an appreciable period. A holiday does not ordinarily establish habitual residence. A parent cannot ordinarily change an established habitual residence unilaterally. In proceedings under the inherent jurisdiction, the children’s welfare remains paramount, although comity and respect for foreign judicial orders remain relevant.

The father sought the return of two children to Australia under the Child Abduction and Custody Act 1985 and Articles 3 and 12 of the 1980 Hague Convention. The children had lived in England for many years, visited Australia for seven weeks, and returned to England with their mother under interim arrangements made by an Australian court. The central issue was whether they had become habitually resident in Australia before their return.

The father alternatively sought return under the inherent jurisdiction. The court also considered the children’s objections, welfare and comity.

1. The Convention application was refused. Habitual residence is a question of fact determined according to all the circumstances. Where an established habitual residence is said to have changed, the burden lies on the party asserting the change.
2. A new habitual residence requires voluntary presence in the country, for a settled purpose and settled intention, for an appreciable period. A holiday stay does not ordinarily establish habitual residence.
3. The children remained habitually resident in England. The mother had made clear before departure that she intended to return to England with them. The proposed move to Australia had therefore ceased to be a shared settled purpose. Preparations for emigration and the children’s brief presence in Australia could not convert the holiday into settled residence.
4. The Australian proceedings and interim orders did not determine habitual residence. The grave-risk defence was, in any event, unsupported by sufficient evidence. The court did not determine the children’s objections under the Convention because the Convention was not engaged.
5. The alternative application under the inherent jurisdiction was also refused. Welfare was paramount. The children were well settled in England, closely attached to their mother, and sufficiently mature for their objections to be considered. Comity was relevant, but the Australian order was interim and contemplated further welfare assessment. Refusal of summary return would not cause undue offence to the Australian court.