S (A Child) (Habitual Residence and Child's Objections)(Brazil)

Habitual residence is a factual inquiry into a child’s integration in a social and family environment. Even assuming that an older child’s state of mind and reservations may be relevant, contemporaneous evidence must be assessed alongside the whole circumstances.

Once the child-objections exception under the Hague Convention 1980 is engaged, the discretion is at large. It is not confined to forum considerations or subject to an additional exceptionality test. Convention policy must be weighed with the circumstances giving rise to the exception and the child’s wider rights and welfare. The inquiry remains summary, not a full welfare trial.

The mother sought the return of G to Brazil under the Hague Convention 1980 and the inherent jurisdiction after G remained in England following a holiday. G’s father and G resisted the application.

Hogg J held that G was habitually resident in England and that her retention was therefore not wrongful. She nevertheless considered the alternative position and concluded that, if G had been habitually resident in Brazil, she would have exercised the child-objections discretion against return. The mother appealed on habitual residence and on the exercise of that discretion.

The Court of Appeal unanimously dismissed the appeal overall. It allowed the appeal on habitual residence, but upheld the refusal to return G on the alternative discretionary basis.

1. Habitual residence. The inquiry concerned G’s integration in a social and family environment, assessed by reference to the whole circumstances and contemporaneous evidence. Black LJ assumed, without deciding, that an older child’s state of mind and reservations could be relevant under Re A and Re LC. G had moved willingly to Brazil on an intended permanent basis, attended school, had friends and a social life, and lived there for 10 months. Her March email and the subsequent absence of contact with her father indicated an allegiance to her mother and life in Brazil at the material time. Her doubts did not materially interfere with integration. The finding that she was habitually resident in England was set aside and Brazil was substituted.
2. Child objections. If G was habitually resident in Brazil, her retention was wrongful under Article 3 and Article 12 required her return unless an exception applied. The child-objections exception involved two stages: whether the child objected and had sufficient age and maturity for her views to be considered, followed by an exercise of discretion. Under Re M: Zimbabwe, that discretion was at large. It required consideration of Convention policy, the circumstances producing the exception, the nature and strength of the objections, their authenticity, their relationship to welfare, and the child’s age. No additional exceptionality test or checklist was permissible.
3. Scope of the discretion. Re L: Texas did not confine the Hague discretion to identifying the appropriate forum. The court could consider practical and substantive aspects of the legal position in both countries and short- or longer-term welfare considerations, while keeping the process summary and avoiding a full welfare inquiry. The judge’s assessment of G’s strong, genuine and mature objections, including the risk of psychological harm and damage to her relationship with her mother, disclosed no error. The separation from her mother and brother did not require return.
4. Inherent jurisdiction. A return under the inherent jurisdiction was not realistically available because the same welfare considerations applied and the mother could not rely on Hague Convention policy. The case was not remitted.

• Court of Appeal (Civil Division): In [2015] EWCA Civ 2, the appeal was dismissed overall. The finding that G was habitually resident in England was replaced with a finding that she was habitually resident in Brazil, while the refusal to order return was upheld.
• High Court Family Division: Hogg J held that G was habitually resident in England and alternatively refused return to Brazil in the exercise of the child-objections discretion.