A v B

Habitual residence under the Hague Convention is determined by the child’s degree of integration into a social and family environment, assessed on the particular facts. Relevant considerations include the duration and quality of stays, the degree of permanence, living conditions, parental intentions, education, healthcare and family relationships. For an infant or toddler, habitual residence will ordinarily reflect the principal carer’s integration, because the child’s life is closely dependent on that carer. Temporary or seasonal visits do not necessarily establish habitual residence. Where the child was not habitually resident in the requested state at removal, Article 3 is not satisfied and the return application fails.

The applicant father sought the summary return of his daughter to Italy under the Child Abduction and Custody Act 1985, which gives effect to the Hague Convention on the Civil Aspects of International Child Abduction. The child had been born in Hungary and had travelled between Hungary and Italy during her early life.

The mother brought the child to the United Kingdom in May 2014. She resisted return, asserting principally that the child was habitually resident in Hungary and, alternatively, relying on Article 13(b). The central issue was whether the child was habitually resident in Italy when removed.

1. Application dismissed. The child was habitually resident in Hungary when she was brought to the United Kingdom. Article 3 therefore did not apply, and it was unnecessary to determine the Article 13(b) defence.
2. Habitual residence was a question of fact requiring consideration of all relevant circumstances. The court applied the European test of integration, as identified in Re A (Area of Freedom, Security and Justice) [2009] 1 FLR 1, Mercredi v Chaffe [2011] 1 FLR 1293 and Re A (Jurisdiction: Return of a Child) [2014] 1 FLR 11. The approach was child-centred rather than directed to asserting parental rights.
3. The relevant assessment included the duration of residence, whether the circumstances showed sufficient permanence, the conditions in which the child lived, the reasons for the family’s presence in each country, parental intentions, nursery or school attendance, and family and social relationships.
4. For a dependent infant or toddler, habitual residence was a reflection of the principal carer’s habitual residence. The child had always been cared for by her mother, whose integration in Hungary was therefore central to the assessment.
5. The child and mother had a secure home base with the maternal family in Hungary. The child attended nursery, was registered with a general practitioner, received state support and was integrated into the maternal family and social environment. By contrast, their stays in Italy involved living temporarily in relatives’ accommodation and lacked the same degree of permanence.
6. The child’s visits to Italy were accordingly holidays, even though some were lengthy. The father’s conduct also supported the conclusion that he accepted the child and mother were resident in Hungary. The court therefore found no habitual residence in Italy at the date of removal.
7. The court did not determine Article 13(b). It nevertheless described the proposed return to Italy with accommodation in a convent, where the mother and child’s movements would be restricted, as repugnant and consistent with the father’s controlling attitude.