A v P

Under the Hague Convention, habitual residence is a question of fact determined by the particular circumstances. For a young child of married parents, one parent cannot unilaterally change the child’s habitual residence. The court must assess whether there was a sufficiently settled and mutual intention to relocate, alongside the practical circumstances. Acquiescence requires the necessary subjective state of mind; mere inaction is insufficient. Where removal or retention is wrongful and proceedings begin within one year, the child should ordinarily be returned forthwith so welfare decisions can be made by the courts of the state of habitual residence.

The father applied under the Convention on the Civil Aspects of International Child Abduction for the return of his daughter to Poland. The mother argued that the child had become habitually resident in England and Wales after the family moved there in June 2010. Alternatively, she argued that the father had acquiesced in the child’s retention in England after the mother returned with her from Egypt in October 2010.

The central issues were the child’s habitual residence and whether the father had acquiesced in her retention.

1. Application granted. The child was ordered to be returned forthwith to Poland. She was to remain in her mother’s care until the Polish courts were fully seised of welfare issues. The court had not investigated the merits of her future care.
2. The Convention applied whether the child’s movement was characterised as removal from Egypt or retention in England. The father had custody rights through the parties’ marriage and the relevant Polish law.
3. Habitual residence was a question of fact dependent on the particular circumstances. The court adopted the analysis in P-J (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588. For married parents and a child of this age, one parent could not unilaterally change the child’s habitual residence.
4. There was no mutual or unequivocal commitment to make England the family’s permanent home. The practical factors relied on by the mother were inconclusive. The Polish divorce petition and related proceedings were inconsistent with settled habitual residence in England.
5. The acquiescence argument failed. Applying Re H (Minors) (Abduction: Acquiescence) [1998] AC 72, the father’s subjective state of mind was not acquiescent. He had also taken proceedings timeously.
6. Re S (Habitual Residence) [2009] EWCA Civ 1021 was distinguishable because it turned on its own facts.