A v B

Habitual residence requires a factual and individual inquiry focused on a child’s integration within a social and family environment. An infant may share the habitual residence of the family unit upon whom the child depends, even before physical presence in that State, or may have no habitual residence. Consent to removal must be clear and unequivocal. Acquiescence depends on the whole factual context. Where consent or acquiescence is established, the court retains a discretion under the Hague Convention, and delay and integration in the new community may make summary return inappropriate.

The mother sought the summary return of D from England to Germany under the 1980 Hague Convention. D was born in Germany and travelled to England at four months, where he remained living with his father and the father’s wife.

The parties gave sharply conflicting accounts of the arrangement for D’s conception, care in Germany and move to England. The central issues were whether D was habitually resident in Germany, whether the mother consented to his relocation or subsequently acquiesced in his continued presence in England, and, if so, how the court should exercise its discretion under Article 13b.

1. Habitual residence. The application was determined on the basis that D was not habitually resident in Germany. The inquiry was factual and individual, directed to integration in a social and family environment. The court applied A v A & Another [2013] UKSC 60 and Mercredi v Chaffe [2012] Fam 22. For an infant, the relevant environment may be that of the persons upon whom the child depends. D was cared for principally by C, intended to live with B and C in England, and was not integrated into the mother’s family environment in Germany. He was therefore either habitually resident in England or had no habitual residence.
2. Consent. Alternatively, the mother had clearly and unequivocally consented to D’s relocation to England. Applying Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051, the court considered the arrangement for D to be brought up by B and C, the transfer of his belongings, the consent document and the surrounding evidence.
3. Acquiescence. The mother had also acquiesced in D’s continued retention in England. Applying Re H (Abduction: Acquiescence) [1998] AC 72, the court considered the communications, voicemails, conduct and timing of the application. It concluded that she acquiesced until August 2014.
4. Discretion. Even if Article 13b were engaged, the discretion would have been exercised against summary return. D had lived in England for 15 months with the adults he regarded as his parents and had formed attachments there. The guidance in Re M (Abduction: Zimbabwe) [2007] UKHL 55 supported resolving future living and contact arrangements in England.