P-J (Children), Re

Habitual residence is a factual question answered by considering the whole circumstances. A stay may be for a settled purpose even if it is temporary or of limited duration. The enquiry concerns the regular order of the child’s life, rather than whether the family has put down substantial roots or has a real home in the new country.

For children of parents with equal parental responsibility, one parent cannot unilaterally change habitual residence. Under Article 13(a) of the Hague Convention on Civil Aspects of International Child Abduction, advance consent to removal may be effective, but it must be clear, unequivocal and subsist when removal occurs. It may be withdrawn before removal. The issue is assessed in the realities of family life, not by contractual rules.

The mother removed five children from Spain to Wales in October 2008. The father sought their return under the Hague Convention on Civil Aspects of International Child Abduction and Brussels II Revised. The President of the Family Division ordered their return to Spain.

The mother appealed. She contended that the children had acquired habitual residence in Wales during an earlier school-year stay with their maternal grandparents, and that the father had given advance consent to their later removal if a renewed attempt at family life in Spain failed. The central issues were the children’s habitual residence immediately before removal and whether any advance consent remained effective.

1. Appeal dismissed. The President was entitled to find that the children remained habitually resident in Spain when the mother removed them to Wales. His order for their return therefore stood.

2. Habitual residence is a question of fact in all the circumstances. A residence adopted voluntarily for a settled purpose may be habitual even where the purpose is temporary, conditional, or of comparatively short duration. The President had not required the family to establish substantial roots in Wales. His references to the family’s roots in Spain and to the planned return were factual findings relevant to the regular order of the children’s lives.

3. The children’s Welsh stay was a temporary arrangement for schooling and while the Spanish family home was renovated. Their education, home and family life remained centred on Spain. Their return to Spain, enrolment in new schools and resumption of family life confirmed that conclusion. The mother’s unilateral change of mind could not alter the children’s habitual residence where both parents had equal rights of custody.

4. Under Article 13(a) of the Hague Convention on Civil Aspects of International Child Abduction, consent must be clear and unequivocal. It may be given in advance for removal at an unspecified future time or on an objectively ascertainable future event. It must nevertheless subsist at the time of removal, and it may be withdrawn before then. Consent is assessed in the realities of family breakdown, not by the law of contract.

5. On the President’s findings, any earlier consent did not subsist. The mother concealed the proposed removal, expected that the father would object, and continued after he objected at the airport while she could still have turned back. Wilson LJ added that a clandestine removal will usually indicate that advance consent had not in reality remained effective.

• Court of Appeal (Civil Division): The mother’s appeal was dismissed and the return order was maintained: [2009] EWCA Civ 588.
• Family Division: The President ordered the mother forthwith to return, or cause the return of, the children to Spain. The lower-court citation was not stated in the judgment.