M (Children : Habitual Residence : 1980 Hague Child Abduction Convention)

Habitual residence is determined by a global factual assessment of the child’s situation at the relevant date. The decisive inquiry is whether the child has the requisite degree of integration in a social and family environment in the state concerned. Stability, rather than permanence, is required. Parental intentions and continuing connections with a former state are relevant factors, but they are not determinative.

The see-saw analogy for the acquisition and loss of habitual residence is only an aid to analysis. It must not displace the primary inquiry or require a child first to sever connections with the former state. A child may become habitually resident in a new state despite continuing family ties with the former state.

The mother appealed a return order made by HHJ Wallwork, sitting as a Deputy High Court Judge, under the 1980 Hague Child Convention. The parents and children had lived in Germany before the mother and children moved to England in July 2018 under an arrangement which contemplated a later return to Germany. The children lived predominantly in England with their primary carer, attended school there, and developed social, medical and family connections there. They continued to spend periods with their father and paternal family in Germany.

The judge held that the children remained habitually resident in Germany when the mother retained them in England at the end of July 2019. He also rejected the mother’s reliance on Article 13(b). The central issue on appeal was whether the judge had applied the correct factual inquiry when determining the children’s habitual residence.

1. Appeal allowed. The children were habitually resident in England when they were retained there at the end of July 2019. Their retention was therefore not wrongful for the purposes of the 1980 Hague Child Convention, and the father’s Convention application had to be dismissed.
2. The governing inquiry is factual and global. The court must identify the state in which the child has achieved the requisite degree of integration in a social and family environment. That approach was established in A v A and another (Children: Habitual Residence) [2014] AC 1 and accords with Proceedings brought by A [2010] Fam 42. Relevant circumstances include the nature and quality of the child’s residence, its stability, schooling, family and social life, and the purposes and intentions of the parents. Stability, not permanence, is required.
3. The judge below erred by treating the critical question as whether the children had lost their German habitual residence. The see-saw analogy in In re B (A Child) [2016] AC 606 reflects the expectation that acquisition of a new habitual residence will usually coincide with loss of the old one. It does not create a separate test or require prior disengagement from the former state. Continuing historical links are relevant, but form only part of the analysis of the child’s current situation.
4. On a proper application of that inquiry, the children had established their home in England with their primary carer, attended school there, spent most of the preceding year there, and were integrated to a substantial degree into its social and family environment. The parents’ intention that they might return to Germany, and their continuing contact with the father and family there, did not counterbalance the stability and extent of their integration in England.
5. It was unnecessary to determine the Article 13(b) issue or the proposed postponement of any return order. Moylan LJ’s judgment was agreed by Simler LJ and Sir Stephen Richards.

• Court of Appeal (Civil Division) Allowed the mother’s appeal and dismissed the father’s application under the 1980 Hague Child Convention.
• High Court of Justice, Family Division HHJ Wallwork, sitting as a Deputy High Court Judge, made a return order on 21 February 2020 after finding that the children remained habitually resident in Germany and that Article 13(b) was not established. That decision was reversed.