N (Hague Convention: Habitual Residence), Re

Habitual residence is a question of fact determined from all the circumstances of the child’s life. The court must focus on the child’s actual situation, including the duration, stability and quality of the residence and the degree of integration into the social and family environment. Parental intentions are relevant only as one factor, particularly in explaining the child’s move. A six-month stay will not necessarily establish a new habitual residence where the child’s living arrangements are unstable and there is little meaningful integration. The duration of residence is less important than its quality. Where the child retains established family links and habitual residence in the original country, a retention there will not be wrongful under Article 3 of the 1980 Hague Convention.

The mother applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, and under Council Regulation 2201/2003 for the return of her nearly three-year-old daughter from England to Canada. The child had travelled to Canada with both parents in October 2015 and returned to England with her father in April 2016. The mother alleged that the father had wrongfully retained the child after 16 August 2016. The father disputed habitual residence, relied on consent and acquiescence, and alternatively relied on Article 13(b). The central issue was whether the child was habitually resident in Canada immediately before the alleged retention.

1. Application dismissed. The child was habitually resident in England immediately before and at the time of the alleged retention. Article 3 was therefore not engaged and no return order could be made.
2. Habitual residence was a question of fact, not a legal concept such as domicile. The court assessed the child’s actual situation, including the duration, regularity, conditions and reasons for the stay, the stability of the arrangements, and the degree of integration into the social and family environment. The purposes and intentions of the parents were relevant only as one factor.
3. The child’s six months in Canada did not establish the necessary integration. She moved between relatives’ homes, had no settled home, nursery or playgroup, and was primarily in the father’s care. The parental relationship was persistently unstable and the child had limited contact with her mother and only superficial relationships with maternal relatives. Registration with a doctor and acquisition of Canadian citizenship were formal steps, but did not demonstrate real social and family integration.
4. The child had been born and raised in England and retained established family links there. The prior agreement that the father might return with her to England if the Canadian venture failed, the return ticket, and her comfortable resettlement in England supported the conclusion that her habitual residence had remained there. The court described the quality of the residence as more significant than its duration.
5. The court did not need to determine the Article 13 exceptions. It nevertheless expressed the provisional view that, if return had been required, the father could not realistically have accompanied the child. Her separation from her primary carer, likely placement in foster care in Alberta with a sibling whom she had never met, and the limited practical and emotional support available from the mother would probably have created a grave risk of psychological harm or an intolerable situation. The court would probably have exercised its discretion against return and distinguished AT v SS.