FB v IB

In Hague Convention child-abduction proceedings, habitual residence is a factual inquiry focused on the child’s integration in a social and family environment. Parental purposes and intentions are relevant factors, but they do not determine the issue. Consent to relocation may be established on the evidence and, where consent is proved, there is no wrongful retention. A parent who permits children to become settled abroad cannot necessarily rely on a later alleged return date. The court may also refuse return under its inherent jurisdiction where this would conflict with the children’s welfare and established circumstances.

The father applied under the 1980 Hague Convention for the return of two children from England to New York. The children had lived with their mother in England since July 2011. The father said that he had not consented to their permanent relocation and that they were wrongfully retained after flights booked for 17 August 2013. The mother relied on a notarised written consent and disputed any agreement to return.

The court heard evidence from both parents, a friend, a notary and a handwriting expert. The central issues were whether the father consented to the children’s relocation, whether there had been wrongful retention, where the children were habitually resident, and whether return should nevertheless be ordered under the Convention or the inherent jurisdiction.

1. Consent and wrongful retention. The mother proved on the balance of probabilities that the father signed and had notarised a consent to the children’s permanent relocation to England. The handwriting evidence was ultimately inconclusive, and the mother’s account was supported by the surrounding evidence and by a corroborating witness. The father’s later purchase of return tickets did not create an agreed return date. There had therefore been no wrongful retention.
2. Habitual residence. Applying A v A and Anor (Children: Habitual Residence) [2013] UKSC 60, and taking account also of In the matter of KL [2013] UKSC 75, habitual residence was a question of fact. The relevant test was the child’s degree of integration in a social and family environment. The reasons for the stay and parental intention were relevant, but the inquiry remained focused on the children’s actual circumstances. The children were integrated into their home, school, family and community in England.
3. Discretionary return. Even if the Convention had applied, the court would have declined to order return. The children had no established home, school or social network awaiting them in New York, whereas their life in England was stable and secure. The court considered Re M (Abduction: Zimbabwe) [2008] 1 FLR 251 and rejected any assumption that the United States was the better forum for resolving the parental dispute.
4. Inherent jurisdiction and orders. Return under the inherent jurisdiction was also refused because it would not promote the children’s welfare. Residence orders were made in favour of the mother, reflecting the reality of the children’s lives. Permission to appeal was refused.

This was a first-instance application in the High Court, Family Division.

• High Court (Family Division): proceedings were issued on 17 September 2013. Directions and interim case-management orders were made before the final hearing. The application for return was refused.