F v S

Habitual residence is determined by the ordinary meaning of the words and all relevant circumstances. Residence must be more than temporary, but need not be permanent or indefinite. A person may cease to be habitually resident in one country before acquiring habitual residence in another, which requires an appreciable period and settled purpose. A young child living with married parents as a family ordinarily shares their habitual residence. One parent cannot unilaterally change that residence without the other parent’s express or clearly implicit consent, or an order of the court.

The parties, both Spanish nationals, lived with their six-year-old son in England from August 2009 while the father worked there. In May 2011 they agreed to remain in England for a further two years and made arrangements for the child’s schooling and the mother’s work there. After their relationship broke down, the mother took the child to Spain and later returned him to England on 17 August 2011, intending to collect him in September. The father obtained an order preventing removal. The mother applied for the child’s return to Spain under the Hague Convention. The central issue was whether the child was habitually resident in Spain on 26 August 2011.

1. Application dismissed. The child was not habitually resident in Spain on 26 August 2011. The stay was removed from the Portsmouth County Court proceedings.
2. Habitual residence is not a term of art. It bears its ordinary and natural meaning and depends on all the circumstances, with objective evidence often carrying greater weight than evidence of subjective intention.
3. Habitual residence requires an abode voluntarily adopted for settled purposes as part of the regular order of life for the time being. Ceasing to be habitually resident in one country differs from acquiring habitual residence in another. The latter requires an appreciable period and settled intention, although the period may be short or may never occur.
4. A young child of married parents living together as a family shares the parents’ habitual residence. The family had become habitually resident in England before May 2011. The agreement to remain for two further years, together with the school, employment and leave arrangements made in June, independently supported that conclusion.
5. In the ordinary case of married parents, one parent cannot unilaterally terminate the child’s habitual residence by removing the child in breach of the other parent’s rights. The father neither subjectively nor expressly consented to the child remaining in Spain, and his conduct did not amount to tacit consent. The mediation ended without agreement, and his conditional reference to the Spanish school did not change that conclusion.
6. The child therefore remained habitually resident in England. Even if the earlier conclusion were wrong, the evidence did not establish habitual residence in Spain by 26 August 2011.