BP v DP (Children: Habitual Residence)

Habitual residence is an essentially factual question. The court must assess the child’s integration into the social and family environment, having regard to all the circumstances. Parental intention is relevant but is not decisive, and residence need not be intended to be permanent. A child may acquire a new habitual residence during a stay originally intended to be temporary.

For Hague Convention purposes, wrongful retention ordinarily occurs when the child is not returned at the end of the period for which consent was given. An anticipatory intention not to return does not, without more, constitute wrongful retention. Where the child is habitually resident in the requested state at the date of retention, the Convention’s summary return mechanism is not engaged.

The mother sought the summary return to Australia of two children who had travelled to England in August 2014, with her consent, while she underwent treatment for serious alcohol-related illness. She had authorised their residence in England for six to twelve months. The children remained with their father, became settled in England, and the mother commenced Hague Convention proceedings on 26 August 2015.

The father argued that there had been no wrongful retention because the children were habitually resident in England when the alleged retention occurred. The central issues were the date of any wrongful retention, whether the children had acquired habitual residence in England, and whether the Convention was engaged.

1. Application dismissed. The children’s removal from Australia was consensual and therefore was not wrongful removal under Article 3 of the Hague Convention.
2. Habitual residence is a question of fact. The court must consider the child’s integration into the relevant social and family environment, including the duration, regularity, conditions and reasons for the stay, schooling, family relationships and other circumstances. Parental intention is relevant but not determinative. Residence requires stability, not intended permanence. The guidance in Re A (Jurisdiction: Return of Child) [2013] UKSC 60, AR v RN (Habitual Residence) [2015] UKSC 35 and Re B (A child) [2016] UKSC 4 was applied.
3. The children had been habitually resident in Australia immediately before travelling to England. By 26 August 2015, however, they had a settled home with their father, had attended local schools for a full academic year, developed friendships and activities, and become deeply integrated into their English domestic, social and educational environment. They had acquired habitual residence in England and Wales.
4. Wrongful retention is an act or event occurring on a specific occasion. It arises where a child initially removed with consent is not returned when the authorised period ends. The court rejected the argument that the father’s January 2015 communication that he was unwilling to return the children amounted to anticipatory wrongful retention. The retention occurred on 26 August 2015, when the authorised period expired. The reasoning in Toren v Toren 191 F 3d 23 (1st Cir 1999), Punter v Secretary for Justice as the New Zealand Central Authority [2003] NZCA 306 and RS v KS (Abduction: Wrongful Retention) [2009] EWHC 1494 (Fam) was accepted.
5. Because the children were habitually resident in England at the date of retention, their retention there was not wrongful for Convention purposes and Article 12 was not engaged. The alternative defences under Article 13(b) and the children’s objections therefore did not require determination. The judge nevertheless indicated that J would have satisfied the objection gateway and that the Article 13(b) defence would not have been established.