H-K (Children)

Habitual residence is determined as a question of fact by examining the actual way of life. A move may create habitual residence even where it is temporary, limited in duration or made on a trial basis. The essential concept is a settled purpose and sufficient continuity as part of the regular order of life for the time being. A permanent home, indefinite stay or domicile-based test is unnecessary. Parental intention is relevant but cannot displace objective evidence of integration, duration, purpose and quality. A parent’s continuing intention to return, or the absence of mutual agreement, is not determinative. European references to permanence must not be read literally.

The parties, an Australian father and British mother, lived with their two children in Australia before moving to England for an agreed period of one year. The mother later decided not to return, while the father returned to Australia and applied under the Hague Convention on the Civil Aspects of International Child Abduction, 1980, alleging wrongful retention. Hogg J found that the children remained habitually resident in Australia and ordered their return. The mother appealed. The central issue was whether the family’s temporary move, integration into life in England and settled purpose had transferred their habitual residence, despite the father’s continuing expectation of a return to Australia.

1. Disposition. Ward LJ, with whom Longmore LJ and Sullivan LJ agreed, allowed the appeal and dismissed the father’s application for the children’s return.
2. Applicable test. Habitual residence is a factual question. Residence may become habitual even where the move is temporary or made on a trial basis. The relevant inquiry is whether the residence was voluntarily adopted for a settled purpose as part of the regular order of life for the time being. It need not be indefinite or permanent. That approach was consistent with Lord Scarman’s reasoning in Reg. v. Barnet L.B.C., Ex p. Shah [1983] 2 AC 309, at 343G and 344B-D.
3. The assessment must focus principally on objectively provable circumstances, including the purpose, duration, quality and integration of the stay. Intention remains relevant, but the father’s continuing intention to return and the absence of parental agreement to change habitual residence could not be treated as defining factors. A real-home or domicile-based test was impermissible.
4. The European authorities required caution. Mercredi v Chaffe, Case C/947/10, [2011] 1 FLR 1293, and In re: A (Area of Freedom, Security and Justice), C-523/07, concerned Brussels II Revised and did not strictly govern a Hague Convention dispute between Australia and the United Kingdom. References to permanence, duration and a lasting centre of interests had to be read consistently with the settled-purpose approach in Shah.
5. Objectively, the family had voluntarily established a new abode in England for a year. The mother’s home, nearby family support, schooling, work or benefits, and social integration demonstrated a settled way of life. The stay was neither transient nor merely peripatetic. The mother’s subsequent deception could not alter the character of the life already adopted in England. The children were therefore habitually resident in England at the relevant time.

• Court of Appeal (Civil Division) — In H-K (Children), [2011] EWCA Civ 1100, the mother’s appeal was allowed and the father’s application for return was dismissed.
• Principal Registry of the Family Division — Hogg J found that the children remained habitually resident in Australia and ordered their return by 21 August 2011.