AB v CD

Habitual residence under the Hague Convention is a child-focused question of fact. The court must assess the child’s integration in a social and family environment, considering all relevant circumstances, including stability, practical connections, family relationships and the circumstances of any move. Parental intention is relevant but not determinative. A child may acquire habitual residence quickly, and there is no fixed minimum period of residence.

Where the child was not habitually resident in the requested state immediately before removal, the Convention return procedure is not engaged. A return may nevertheless be consented to if the consent was clear and unequivocal, remained operative at removal and is established on the facts.

The father applied under the Hague Convention 1980 for the return of his young son, E, to Brazil. The child had lived for periods in England and Brazil. The father argued that E was habitually resident in Brazil immediately before the mother took him to North America and then England. The mother argued that E had never been habitually resident in Brazil, alternatively that the father had consented to the return to England, and further relied on Article 13(b).

The court had to determine E’s habitual residence, whether the removal was wrongful, whether consent was established, and whether an order should be made under the inherent jurisdiction.

1. Habitual residence. Habitual residence is determined by the child’s degree of integration in a social and family environment. The enquiry is fact-sensitive and child-focused. Relevant matters include the duration, regularity and conditions of the stay, the reasons for the move, family and social relationships, accommodation, practical connections and durable ties. Stability is qualitative rather than merely quantitative. Parental intention is relevant but not determinative, and there is no requirement of permanence or a minimum period of residence.
2. The mother remained habitually resident in England. Her home, employment, possessions and established life were there. The temporary trip to Brazil, including the extension of the visit, the operation, family activities and consideration of alternative accommodation, did not amount to a transfer of habitual residence.
3. E was also habitually resident in England immediately before the removal. Although he had spent nearly five months in Brazil and had family, medical and social connections there, his principal care and security were provided by his mother in England. The Brazil trip began as a short visit, was extended, and never became residence. The father’s possible continuing habitual residence in Brazil did not determine E’s position.
4. Accordingly, E was not habitually resident in Brazil immediately before removal and the application under the Convention could not succeed. The court additionally found that the father had unequivocally consented to E returning to England. Consent had to be clear and unequivocal, could relate to a future or unspecified time, had to remain operative at removal, and was a fact-specific question viewed in the realities of family life.
5. The Article 13(b) defence did not require determination. The invitation to order E’s return under the inherent jurisdiction was declined because more detailed welfare evidence was required. The father’s applications were dismissed.