MB v SB

Habitual residence is a question of fact, determined by examining the reality of the child’s day-to-day life. The central inquiry is whether the child has achieved some degree of integration in a social and family environment. Duration, regularity, conditions and reasons for the stay, schooling, language, family relationships and parental intentions may all be relevant, but no single factor is decisive. Parental intention concerns the reasons for the move and its intended stability, rather than an intention to acquire habitual residence as a legal status. A temporary or ambiguous move may fail to displace the child’s existing habitual residence. The court must examine the child’s subjective and emotional experience, not merely the surface features of the child’s life.

The father and mother disputed the habitual residence of their daughter, M, after the mother and child lived in Israel from July to December 2013. The father had moved to Israel permanently and argued that M had become integrated there through schooling, accommodation and regular contact with him. The mother maintained that the move was exploratory, that she had retained her connections with England and that M had not settled or integrated in Israel.

The court considered the effect of the Israeli proceedings, including the limited preliminary nature of the Israeli Court of Appeal’s view for the purposes of Article 15. It also addressed the father’s application under the inherent jurisdiction after determining habitual residence. The central questions were whether M had acquired habitual residence in Israel and whether a return there was justified.

1. Habitual residence. Habitual residence was a factual question, not a legal status. The relevant test was the place reflecting some degree of integration by the child in a social and family environment. The inquiry had to remain individual and fact-sensitive, without legal glosses that displaced the factual reality. The child’s own experience, including emotional and subjective integration, was relevant.
2. Relevant factors. The court considered the duration, regularity, conditions and reasons for the stay; schooling; language; family and social relationships; and the parents’ intentions concerning the move. Parental intention was relevant to the reasons for the move and whether it had sufficient stability to change habitual residence. A temporary or ambiguous move could leave the original habitual residence intact.
3. Application. M’s attendance at school in Israel, the lease of accommodation and her contact with her father did not outweigh the wider evidence. She spoke no Hebrew, struggled at school, was bullied, had no settled friendship network and was emotionally unsettled. Her mother had not put down roots and the parental conflict prevented M from establishing a secure family life. The court therefore found that M had not achieved sufficient integration or stability in Israel and remained habitually resident in England.
4. Further application. It was unnecessary to determine the Article 13B submissions. The court nevertheless considered the father’s inherent-jurisdiction application, for which welfare was paramount. The evidence did not justify returning M to Israel. The father remained important to M emotionally, culturally and in relation to her identity, and the court expressed the hope that both parents would preserve that relationship.