AB v CD

Habitual residence is principally a child-centred question of fact. The court must assess the child’s degree of integration in the relevant social and family environment, without imposing legal glosses that distort the factual inquiry. Parental intention is relevant but not determinative. A child’s habitual residence may change unilaterally, and no minimum period is required before a new habitual residence is acquired. For a young child, the primary carer and the child’s relationships and connections will usually be particularly important. Where a child retains very substantial connections with the former state and does not acquire habitual residence in the proposed new state, the former habitual residence continues. A return application cannot succeed where there has been no wrongful retention and the court lacks jurisdiction.

The applicant father sought the summary return of the parties’ toddler from Spain. He alleged that the respondent mother had wrongfully retained the child in Spain from 6 January 2018. The child had lived principally with the mother in Spain from birth, but had made several journeys between Spain and England.

The father contended that the child had acquired habitual residence in England after arriving there on 27 June 2017. The mother contended that the child remained habitually resident in Spain, or had resumed habitual residence there by 30 November 2017. The central issues were the child’s habitual residence at the relevant time, whether there had been wrongful retention, and whether the court had jurisdiction.

1. Application dismissed. The court discharged the earlier return order and the certificate sent to the Spanish courts. The father’s related child arrangements application was also dismissed for want of jurisdiction.
2. Habitual residence is essentially a question of fact. The inquiry is child-centred and concerns the child’s integration in the relevant environment. It should not be distorted by legal glosses or rigid sub-rules. A degree of integration is sufficient; full integration is unnecessary.
3. Parental intention is a relevant factor but is not determinative. A child’s habitual residence may change unilaterally, even where parental responsibility is shared and one parent does not agree. There is no minimum period required for a new habitual residence to arise. In unusual cases a child may have no habitual residence, but ordinarily there will be a seamless transfer.
4. The court focused on the toddler’s circumstances rather than the parents’ conflicting accounts of their intentions. The child had spent the first nine months of life in Spain with his primary carer and had substantial connections with his maternal family there. Applying the see-saw analogy, those connections remained very substantial.
5. The child had not acquired habitual residence in England during the periods relied on by the father. Alternatively, he had re-acquired habitual residence in Spain on or shortly after 30 November 2017. There was therefore no wrongful retention in Spain from 6 January 2018, and this court had no jurisdiction under BIIa or in relation to the child arrangements application.