Alcott (No. 1)

For the Hague Convention to apply, the child must have been habitually resident in the requested state immediately before the alleged breach. Habitual residence is a question of fact, determined by the child’s integration in a social and family environment. Parental intentions are relevant but are not decisive. A short or ambiguous relocation may leave the child habitually resident in the original state, particularly where the child is deeply integrated there and has acquired few roots in the new state. On the facts, the child had not acquired habitual residence in Australia and the summary-return application was dismissed.

The father applied for the summary return of the parties’ nearly three-year-old child to Australia under the Hague Convention 1980 on the Civil Aspects of International Child Abduction. The mother opposed the application, contending that the Convention did not apply because the child was not habitually resident in Australia immediately before the alleged wrongful removal.

The child had been born in Britain and had lived there with his mother, his primary carer. Mother and child travelled to Australia for what the court found was a conditional and exploratory move. They remained there for seven days before returning to England. The central issue was whether the child had acquired habitual residence in Australia by 12 April 2016.

The father’s application for summary return was dismissed. The mother had not wrongfully removed the child from Australia and had not abducted him.

1. Habitual residence is a question of fact. The inquiry is child-focused and asks whether the child has achieved sufficient integration into a social and family environment for the residence to be termed habitual.
2. Parental purposes and intentions are relevant but not decisive. The court must consider the quality and stability of the residence, including the reasons for the move, living conditions, pre-planning, prior integration and the perceptions of the dependent parent.
3. The move was ambiguous and conditional. There was no settled plan for the child’s day-to-day life in Australia, and the father’s accommodation was unstable.
4. The child was deeply integrated in England but had spent only seven days in Australia and had acquired insufficient stability or roots there. He therefore remained habitually resident in England and had never become habitually resident in Australia.

The application was dismissed.