C v G

In a non-Hague Convention case, the court must determine habitual residence by a child-focused factual inquiry. The central question is the child’s degree of integration in a social and family environment, assessed by reference to stability, proximity, parental intention and the child’s connections with each country. No fixed period of residence or intention of permanence is required. Where children have been wrongfully removed, their continued connection with their home country and the importance of their relationship with both parents may justify summary return. Domestic violence is relevant to welfare because it may involve a failure to protect both the child’s primary carer and the child emotionally.

The applicant mother sought the return to England of two young children who had been taken by their father from India to Madagascar. The children had lived virtually all their lives in England and had UK citizenship. The mother alleged that the father had removed them without her knowledge or consent and had subsequently prevented contact.

The court considered whether the children were habitually resident in England at the relevant date and whether, under the inherent jurisdiction in a non-Hague Convention case, their return was in their best interests. Earlier orders had provisionally found English habitual residence and jurisdiction.

1. The court had jurisdiction under Articles 8 and 10 of Council Regulation (EC) 2201/2003. Article 10 applied notwithstanding that the children had been taken to Madagascar, a non-Member State. The children had remained habitually resident in England when removed and when the court was seised. Article 12(3) was not clearly applicable because the father’s acceptance of jurisdiction was not unequivocal. Article 14 therefore did not need consideration. [2017] EWHC 762 (Fam) [34]–[40]
2. Habitual residence was a question of fact centred on the child. The relevant inquiry was the child’s integration into a social and family environment, assessed by stability rather than permanence, without imposing a fixed period of residence or a requirement that either parent intend permanent residence. Parental intention was relevant but not determinative. A child could acquire habitual residence quickly, and it was highly unusual for a child to have none. [2017] EWHC 762 (Fam) [38]
3. The children had lived virtually all their lives in England, had their primary relationship with their mother there, and had not acquired sufficient stability or integration in Madagascar. The father had wrongfully removed them without the mother’s knowledge or consent. [2017] EWHC 762 (Fam) [39], [42]–[48]
4. In a non-Hague Convention case, return was not automatic. The court had to act in accordance with the children’s welfare. Relevant considerations included their connection with each country, the length of residence, the wrongful nature of the removal and the need for a meaningful relationship with both parents. Domestic violence was a significant failure of parenting because it failed to protect the child’s carer and the child emotionally. [2017] EWHC 762 (Fam) [41], [52]–[57]
5. The children’s exceptionally strong relationship with their mother, their young ages, the allegations requiring investigation, and the father’s unjustified denial of contact made return to England in their best interests. The children were ordered to return to the UK into the mother’s care. The father remained able to argue in later proceedings that they should live in Madagascar. [2017] EWHC 762 (Fam) [52]–[59]

The judgment describes earlier procedural orders, including a provisional finding of habitual residence and jurisdiction by Holman J, subsequent adjournments and directions, and requests for assistance from the Madagascan authorities. The present decision was a first-instance determination by the High Court (Family Division).