AB v XY (Rev 1)

Habitual residence is a question of fact centred on the child. The court must assess whether the child has achieved some degree of integration in a social and family environment, considering the child’s age, daily life, stability, physical presence, family relationships and the circumstances of the move. Parental intention is relevant but not determinative. Duration is an indicator, not a minimum requirement, and the inquiry must not be overlaid with rigid legal sub-rules. For a very young child, the relevant environment is closely connected with the carers on whom the child depends. A child will ordinarily have a habitual residence somewhere, although exceptional cases may produce a period without one. On the evidence, the child remained habitually resident in England and had not acquired habitual residence in Malta.

The applicant father sought the summary return of the parties’ 21-month-old child to Malta under the 1980 Hague Convention. The respondent mother opposed the application, arguing that the child had remained habitually resident in England and relied alternatively on Article 13(b). The child had travelled extensively between England, Malta, Italy and other countries from birth, spending substantial periods with both parents in England and Malta. The central issue was whether the child had lost English habitual residence after travelling to Malta and had acquired habitual residence there before being brought back to England.

The court heard limited oral evidence from both parents to provide context for the documentary evidence.

1. Habitual residence. The application for summary return was dismissed. The father failed to establish that the child was habitually resident in Malta at the relevant time or at any earlier stage.
2. The court applied the child-focused test stated in A v A [2013] UKSC 60 and developed in the subsequent Supreme Court authorities. Habitual residence is a question of fact, not domicile or another legal status. The inquiry concerns the place reflecting some degree of integration by the child in a social and family environment.
3. The assessment must consider the child’s actual circumstances, including age, daily life, stability, physical presence, family and social connections, medical and childcare arrangements, and the reasons and circumstances of travel. Parental purposes and intentions are relevant but are only factors. The court must avoid glosses or sub-rules which distort the factual inquiry.
4. For an infant, the social and family environment is substantially determined by the people with whom the child lives and by whom the child is cared for. The child’s young age made isolated appointments, occasional nursery attendance and limited medical contacts in Malta insufficient evidence of integration there.
5. The child’s repeated returns to England, the mother’s primary care, the depth of the English maternal family environment, the English antenatal, postnatal and immunisation arrangements, and the absence of a settled relocation to Malta showed that the child’s English habitual residence had not been lost. The periods in Malta formed part of a highly mobile family lifestyle and did not establish Maltese habitual residence.
6. The court also ordered the father to pay one half of the mother’s costs, namely £18,096.60 within 28 days. The ordinary approach in family proceedings is not an inflexible rule. The court may order costs where the circumstances, including unreasonable conduct or a disparity of means, make that just.