S (A Child)

Habitual residence is determined by a fact-based assessment of the child’s settled order of life. The inquiry is not controlled by the child’s supposed “real home” or a centre-of-interest test. A family may acquire habitual residence in a work country while retaining a principal home, possessions and continuing connections elsewhere. Intention is relevant, but cannot alone establish habitual residence. An appreciable period is required, although its length varies with the circumstances and may be short. Seven or eight weeks may suffice where the family has moved together for an expected period of months and the arrangement is not a holiday. An appellate court should not disturb a finely balanced first-instance conclusion that was open on the facts and based on correct legal principles.

The father removed the parties’ daughter from London to Belgium on 28 September 2007 without the mother’s consent. Parker J conducted a final hearing under the Hague 1980 Abduction Convention, alternatively under the inherent jurisdiction of the High Court, and found that the child was habitually resident in England at the date of removal. The father appealed that finding. The mother cross-appealed findings concerning consent and acquiescence. The appeal concerned whether the family’s seven-to-eight-week stay in Wandsworth had established habitual residence, despite the retained Belgian home and possessions, and whether a centre-of-interest or real-home approach should govern.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. Lord Justice Wall and Lord Justice Moore-Bick agreed with Lord Justice Thorpe. The operative order was “Appeal dismissed”.
2. Applicable approach. The court accepted the fact-based approach in C C-523/07, which did not favour a centre-of-interest test. The approach in Re: P-J [2009] EWCA (Civ) 588 confirmed that habitual residence under the Hague Convention has its own autonomous meaning, broadly equating with ordinary residence. The “real home” approach was not the governing test. Re: J [1990] 2 AC 562 was distinguished because it concerned an inherent-jurisdiction application in a different legal context.
3. Application to the facts. Retention of the Belgian home, possessions and other connections did not prevent acquisition of habitual residence in England if the other elements were satisfied. The family had moved together to Wandsworth, had the right to live there, brought what they needed, and lived there in connection with the father’s London employment contract. The intended stay was three to nine months, was not a holiday, and would have continued while affordable accommodation remained available. The Belgian visits were visits rather than continued residence.
4. Duration and intention. Intention was relevant but could not by itself establish habitual residence. An appreciable period was required, but its length was variable and could be short or conditional. The period discussed in Re: N [1995] 2 FLR 23O was treated as a high-water mark. On the particular facts, seven or eight weeks was sufficient. The judge had correctly directed herself, heard extensive evidence and reached a conclusion open to her. The child was therefore habitually resident in England when removed.

• Court of Appeal (Civil Division): On 30 July 2009, dismissed the father’s appeal against the habitual-residence finding. The judgment also records the mother’s cross-appeal concerning consent and acquiescence.
• High Court, Family Division: Parker J found that the child was habitually resident in England at the date of removal, following a final hearing under the Hague 1980 Abduction Convention and, alternatively, the inherent jurisdiction. The decision is cited as [2008] EWHC 1873 (Fam).