P-J (Children), Re

Habitual residence is a question of fact assessed in all the circumstances. Residence for a settled purpose may be short or conditional. Substantial roots and an intention to remain indefinitely are unnecessary. A temporary absence for education does not itself change an existing habitual residence.

Consent to a child's removal must be clear and unequivocal. Advance consent may cover removal at an unspecified future time, but it must remain effective when removal occurs. Consent may be withdrawn before removal, even where the other parent has relied on it. The enquiry concerns the realities of family life and is governed by those realities rather than contract law. The parent asserting consent bears the burden of establishing it.

The mother appealed against an order requiring her five children to return to Spain under the Hague Convention on Civil Aspects of International Child Abduction. Their father was Spanish, and the family had lived in Spain before the mother and children spent a school year with the maternal grandparents in Wales. The parents had agreed that they would return to Spain after that year, while the Spanish family home was refurbished.

During the stay in Wales, the mother decided that she wanted a divorce. The father persuaded her to attempt reconciliation in Spain and assured her that she could return to Wales with the children if it failed. The family returned to Spain, and the children resumed schooling there. The mother subsequently removed them to Wales without warning the father. He opposed their departure at the airport.

On 27 March 2009, the President of the Family Division ordered their return. The mother's appeal challenged his findings that the children remained habitually resident in Spain and that the father had not consented to their removal. Permission to appeal was granted at the urgent hearing, but the appeal was dismissed.

The appeal was dismissed unanimously. The finding that the children remained habitually resident in Spain was upheld, as was the rejection of the consent defence.

1. Habitual residence was a factual question determined by all the circumstances. The relevant enquiry concerned the regular order of life, residence adopted voluntarily for a settled purpose and sufficient continuity. A settled purpose could be temporary or conditional. Asking whether a family had put down substantial roots would misdirect that enquiry. The ordinary-residence principles in Reg. v Barnet London Borough Council, ex parte Nilish Shah were applicable in this context (paras 26–34).

2. The President's judgment, read as a whole, recognised those principles. His references to the family's Spanish roots described the facts rather than imposing a legal requirement. An agreement to send children abroad temporarily for education was a material circumstance, rather than conclusive proof of changed habitual residence. The children's ordered life remained Spanish throughout the Welsh stay. Their mother's unilateral change of intention could not alter that position (paras 27–34).

3. Where the first-instance judge correctly applied the law, appellate intervention required a material error in considering relevant circumstances or a conclusion shown to be plainly wrong. Neither was established (para 31).

4. Under Article 13(a) of the Hague Convention on Civil Aspects of International Child Abduction, consent had to be clear and unequivocal. Advance consent could cover future removal, including removal at an unspecified time. It had to remain effective at actual removal and could be withdrawn beforehand. Contractual arguments about reliance or irrevocability could not replace the factual enquiry into the parent's actual stance. Both judges adopted the relevant analysis in Re L (Abduction: Future Consent) [2007] EWHC 2181 (Fam). Their further guidance required a condition attached to future consent to be objectively ascertainable rather than dependent on one parent's subjective assessment (paras 47–48, 55).

5. The mother had failed to establish continuing consent. She concealed the removal because she knew or suspected that the father would object. His conduct at the airport reflected opposition already adopted after the children settled into their Spanish home and schools. Wilson LJ emphasised that isolated emotional statements could misrepresent a parent's actual stance. Clandestine removal was usually indicative, though not decisive, of the absence of continuing consent (paras 49, 56–59).

6. Ward LJ left open the possible interaction between consent and Article 3, proceeding under Article 13(a). Wilson LJ separately considered that consent meant prior consent and that existing authority placed consent issues within Article 13. The dismissal enabled the children's return to proceed as the President had directed (paras 43, 50, 53).

• Court of Appeal (Civil Division): At the hearing on 9 April 2009, permission to appeal was granted and the mother's appeal was dismissed. Written reasons were delivered on 23 June 2009 in [2009] EWCA Civ 588 .
• High Court of Justice (Family Division): On 27 March 2009, the President of the Family Division ordered the mother to return or cause the return of the five children to Spain. Enforcement was deferred until after 11 April 2009. No citation for that judgment is stated.