FT and NT (Children), Re

Habitual residence is a question of fact. The court should take a broad view of the evidence rather than conduct a microscopic examination of individual matters. Acquisition of habitual residence requires an appreciable period and a degree of settled purpose, but neither period is fixed. Habitual residence may arise even where the move was temporary or made on a trial basis. Relevant circumstances include the family’s intentions, arrangements for residence, employment, possessions, schooling, healthcare, immigration status and other durable ties. Young children living with both married parents ordinarily share their parents’ habitual residence. One parent cannot unilaterally change it without the other parent’s express or tacit consent, or an order of the court.

The mother applied for the summary return of two young children to Canada under the Hague Convention. Both parents were British nationals who had obtained permanent-residence rights in Canada and had relocated there with the children in August 2012. Following the breakdown of their relationship, the father removed the children to England on 18 February 2013 without the mother’s consent.

The father contended that the children remained habitually resident in England because the family had not become settled in Canada and had agreed that either parent could return to England if the move did not work. The central issue was whether the children had acquired habitual residence in Canada by the date of removal.

The application for summary return succeeded. Mrs Justice Pauffley held that the children were habitually resident in Canada when the father removed them to England.

1. General approach. Habitual residence was a question of fact to be determined by considering the totality of the evidence and taking a general view. The court should avoid a microscopic search through individual documents or events.
2. Time and settled purpose. The period required to acquire habitual residence was not fixed and depended on the facts. A degree of settled purpose was required, but the purpose could be specific or general. Habitual residence could be acquired despite a temporary or trial move.
3. Evidence of residence. The family had pursued permanent residence in Canada, resigned from employment, sold or shipped possessions, arranged schooling and nursery care, obtained employment and financial arrangements, and established medical and other ties there. The children had lived in Canada for approximately six months.
4. Parental intentions. The evidence did not support the father’s alleged prior agreement that either parent could return to England with the children if unsettled. The January and February text messages instead showed that the parents had developed divergent views after the relationship breakdown.
5. Application. The evidence viewed as a whole established that the children had acquired habitual residence in Canada. The father’s unilateral removal could not alter that conclusion. He had no right to decide unilaterally that the children should be brought to England.

First-instance decision. The judgment does not state any prior appellate decision.