VK v JV

Habitual residence is a question of fact, assessed according to the ordinary meaning of the words. It may arise from residence for a settled purpose even where the stay is temporary, conditional or intended to last for a comparatively short period. A child’s habitual residence will generally follow that of the family, but one parent cannot ordinarily change it unilaterally.

Consent to removal under the Hague Convention must be clear and unequivocal. It may be given in advance and subject to a future event, but must remain operative at removal. It may be withdrawn before the permitted parent begins to depart. A court should not ordinarily delay return to await proceedings in the state of habitual residence.

The father sought the return of two children to Latvia under the Hague Convention. The parents had lived and worked in England, while the children had later been placed with the father’s aunt in Latvia under a power of attorney and an order of the Latvian Orphans’ Court.

The mother removed one child to England pursuant to a handwritten agreement between the parents. She later removed the second child after the father had withdrawn his consent. The court had to determine the children’s habitual residence at each removal, whether the father had consented, whether an Article 13(b) defence arose from separating the children, and whether return should be delayed pending Latvian proceedings.

1. Habitual residence. The court applied Re J [1990] 2 AC 562 and the principles collected in Re P-J (Abduction) [2009] EWCA 588. Habitual residence is a question of fact, not a technical concept. Residence for a settled purpose may suffice even where the purpose is temporary or conditional and the family has not put down substantial roots.
2. The children’s residence in Latvia became habitual residence because of the parents’ arrangements, the Latvian court order, declared residence, medical and educational arrangements, and the intended duration and quality of the stay. Alternatively, the agreement of 16 January 2012 made SK habitually resident in Latvia by that date. AK was habitually resident there when removed on 16 January 2012, and SK when removed on 27 July 2012.
3. Consent. The handwritten agreement was clear and unequivocal. It authorised AK’s removal to England, and the father’s conduct confirmed that consent. The mother therefore established consent in relation to AK. She did not establish consent in relation to SK. The father had withdrawn consent before the removal, and the mother knew that. SK’s removal was wrongful.
4. A withdrawal of consent becomes too late once the permitted parent has begun to depart. The court also rejected the late Article 13(b) defence based on separating the children, particularly because the mother had herself agreed to an arrangement that could result in their separation.
5. The court declined to exercise a discretion to return AK despite the desirability of keeping the children together, having regard to the father’s consent and his failure to act for six months. Following R v K [2009] EWHC 132, a return should not ordinarily be delayed pending a foreign court hearing. The mother was given limited time to arrange her return and to seek interim permission in Latvia.