L-S (A Child)

Habitual residence is a factual question focused on the child’s integration in a social and family environment. For an infant, that assessment includes the integration of the parents or other carers, while parental intention remains a relevant part of the factual matrix.

Acquiescence may be established where a wronged parent’s formal agreement clearly and unequivocally accepts that the child will remain abroad. A later change of mind does not undo an acquiescence already established. Delay and settlement may contribute to an Article 13(b) case, but they must be assessed against the stringent requirements of grave risk and an intolerable situation. Once acquiescence engages the court’s discretion, a return should not be ordered where its usual purpose has already been met by an existing custody order and the circumstances favour non-return.

The mother removed M, then aged three months, from the United States to England. Parker J held that M had become habitually resident in the United States during an earlier two-month stay there. She rejected the mother’s defences of acquiescence and grave risk under Article 13(b) of the Hague Convention, and ordered M’s return.

The mother appealed. She challenged the habitual-residence finding, contended that the father had acquiesced through a formal United States divorce and custody agreement, and relied on M’s settlement in England and the practical consequences of return. The central issues were habitual residence, acquiescence, Article 13(b), and the discretion arising if acquiescence were established.

1. Appeal allowed. The challenge to habitual residence failed. Habitual residence was a factual and individual inquiry into the child’s integration in a social and family environment. For an infant, the court had properly considered the position of both parents. The judge’s findings that the mother returned to resume family life in the United States, and that M entered family life there with both parents, were open to her. M was therefore habitually resident in the United States when removed.

2. The appeal succeeded on acquiescence. The judge had not given sufficient consideration to the formal custody agreement, subsequently embodied in a United States court order. Under the strictly exceptional principle in Re H (Minors) (Abduction: Acquiescence) [1998] AC 72, a formal agreement may amount to clear and unequivocal conduct inconsistent with seeking summary return. The agreement gave the mother full legal and physical custody and confined the father to summer visitation, when both parents knew that she intended to remain in England. It therefore established acceptance that M would remain with her there. The father’s uncommunicated contrary intention could not displace that conclusion.

3. The later voicemail did not withdraw the acquiescence. Once established, acquiescence is not a continuing state of affairs capable of being undone by a later change of mind: Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106.

4. The Article 13(b) appeal failed. Re KS (Abduction: Wrongful Retention) [2009] EWHC 1494 (Fam) was a correct application of the law on its exceptional facts. Delay and settlement can be relevant, as recognised in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, but Article 13(b) requires an evaluative inquiry, not the simple one-year calculation under Article 12. The judge’s conclusion that the circumstances, including the father’s undertakings, fell short of a grave risk of an intolerable situation was within the proper margin of evaluation.

5. Following acquiescence, return was discretionary. Applying Re M (Abduction: Rights of Custody) [2007] UKHL 55, no requirement of exceptionality applied. Here, the usual rationale for speedy return so that the home court could decide custody did not apply: that court had already made an order on the basis that M would live in England with the mother. M’s settlement, the mother’s precarious immigration position, limited expected contact, and the proposed living circumstances reinforced non-return. The return order was set aside.

1. Court of Appeal (Civil Division)—Allowed the mother’s appeal, found acquiescence, exercised discretion against return, and set aside the return order: [2017] EWCA Civ 2177.
2. High Court (Family Division)—Parker J held that the child was habitually resident in the United States, rejected acquiescence and Article 13(b), and ordered return. A citation for that judgment is not stated in the judgment.