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

A child's habitual residence is determined by a global factual assessment of the child's situation at the relevant date. The inquiry concerns whether the child has achieved sufficient integration in a social and family environment for the residence to be habitual. Stability matters more than permanence, and parental intentions are among the relevant factors. Continuing connections with a previous state do not themselves prevent acquisition of habitual residence elsewhere. The see-saw analogy describes expectations about the acquisition and loss of habitual residence. It must not replace the factual inquiry or make the loss of previous connections its primary focus.

The mother and father had two children, aged six and eight, one of whom had significant additional care requirements. The mother had been their primary carer throughout their lives. All four had been born in Germany, where the father continued to live. In July 2018, the children moved with the mother to England under an agreement envisaging a stay of about a year. They established a home with her, attended school and maintained regular contact with the father in Germany.

In July 2019, the mother decided to remain in England with the children. The father applied for their return under the 1980 Hague Child Abduction Convention. HHJ Wallwork, sitting as a Deputy High Court Judge, found that the children had retained their German habitual residence and that the Article 13(b) exception was not established. He made a return order on 21 February 2020. The mother appealed those findings and alternatively sought postponement of return to permit a relocation application in Germany. The principal issue was whether the judge had applied the correct approach to habitual residence.

1. The appeal was unanimously allowed. Moylan LJ's judgment, with which Simler LJ and Sir Stephen Richards agreed, established that the children were habitually resident in England at the date of their retention. The father's return application was dismissed.

2. Habitual residence required a global factual assessment of all relevant circumstances at the date of removal or retention. The essential question was whether the child had achieved sufficient integration in a social and family environment for the residence to be habitual. Full integration was unnecessary. The inquiry concerned the nature, quality and stability of residence. Parental intentions were relevant factors, and residence could be habitual despite an agreement limiting its duration: A v A, [2014] AC 1; In re LC, [2014] AC 1038; and In re R, [2016] AC 76 (paras 45–53, 61, 68).

3. The see-saw analogy in In re B, [2016] AC 606, concerned the expectation that acquisition of a new habitual residence would coincide with loss of the previous one. Its accompanying suggestions were expectations, rather than additional rules. A comparative assessment might be required where two states were in issue, but the child's current situation remained central. Continuing and historical connections formed part of the assessment rather than its primary focus. The otherwise helpful summary in Re B (A Child: Custody Rights, Habitual Residence), [2016] EWHC 2174 (Fam), should in future be used without sub-paragraph (viii), which risked diverting attention towards connections before the move (paras 57–63).

4. The judge had focused on whether the children had lost their German habitual residence. That approach distorted the factual inquiry and produced a different conclusion from the correct assessment. The children had established their home in England with their primary carer, settled quickly at school and spent substantially more time there than in Germany. Their integration was substantial and their life stable. The intended return and continuing German family connections did not counterbalance those circumstances. On any proper application of the test, they were habitually resident in England, so remittal was unnecessary (paras 66–75).

5. The Article 13(b) challenge and requested postponement of return therefore required no determination. There was some force in the criticism of the judge's assessment of the effects of return, although Moylan LJ doubted that it would have justified overturning the rejection of the exception. That observation did not decide the issue (paras 64–65, 76).

• Court of Appeal (Civil Division): In [2020] EWCA Civ 1105 , unanimously allowed the mother's appeal and dismissed the father's return application because the children were habitually resident in England at the date of retention.
• High Court of Justice, Family Division: On 21 February 2020, HHJ Wallwork, sitting as a Deputy High Court Judge, ordered the children's return to Germany. He found that their German habitual residence continued and that the Article 13(b) exception was not established. No citation for that judgment was stated.