R v A

Habitual residence is a question of fact assessed by examining the child’s actual integration into a social and family environment. Residence may be habitual despite being short, provided it is voluntarily adopted for settled purposes as part of the regular order of life for the time being.

Where a parent agrees to an overseas stay for a limited purpose or period, that agreement does not extend to a different purpose or permanent relocation. Clear evidence is required before consent to a change of habitual residence can be implied, particularly where there has been deception. Passage of time alone does not necessarily change habitual residence after an unlawful removal.

The father applied under the Hague Convention for the return of three children from England to the USA. The two older children had lived in the USA, then in England from December 2009, and returned to the USA with both parents in January 2012. The mother removed all three children from California to England in August 2012 without the father’s agreement.

The central issues were whether the children were habitually resident in the USA when removed, whether the father had consented to or acquiesced in their retention in England, and whether the mother had established a defence under article 13(b). The mother also argued that the youngest child had remained habitually resident in England because she had been born there.

1. Habitual residence. The court adopted the formulation in FVS v MGS, drawing on Shah, Re J, Re P-J, Re A, Mercredi v Chaffe and Re H-K. Habitual residence is not a term of art. It is assessed objectively by reference to all the circumstances, with intention relevant only so far as objectively established. Residence may be short-lived, and permanence is not required in the sense of residence forever or indefinitely.
2. Parental agreement. The proper question is whether a parent voluntarily agreed to the child being in a country for a stay of sufficient duration and quality to be regarded as habitual. Agreement given for one purpose does not amount to agreement for another. Clear evidence is required before consent can be implied. Deception makes implied consent particularly difficult to establish.
3. Application. The father agreed to the children’s move to England in December 2009 for a temporary and conditional medical purpose. He did not agree to permanent relocation. The children therefore remained habitually resident in the USA. Alternatively, their return to the USA in January 2012, with both parents, into the family home, schools and established family life, made all three children habitually resident there by August 2012. The youngest child’s birth in England did not prevent her acquiring habitual residence in the USA after living there with both parents and her siblings.
4. Acquiescence. Applying Re H (Abduction: Acquiescence), the mother bore the burden of proving actual consent or conduct which clearly and unequivocally communicated acceptance of the children remaining in England. The father’s protests, references to kidnapping, requests for return and use of mediation were inconsistent with acquiescence.
5. Article 13(b). The mother did not establish a grave risk of physical or psychological harm or an intolerable situation. The father’s undertakings concerning criminal proceedings, travel, maintenance, accommodation and non-molestation addressed the financial concerns relied upon.
6. The children were ordered to be returned to the USA pursuant to the Hague Convention. Had the youngest child not been habitually resident in the USA, she would have been returned under the inherent jurisdiction.