B (A Child) (Abduction: Habitual Residence)

Habitual residence is determined by a global, child-focused assessment of all relevant circumstances. Where a family moves between states, the court must consider the child’s practical connections with both the old and new states. Only some degree of integration in the new social and family environment is required.

A young child shares the environment of all the people on whom the child depends. The circumstances of both parents are therefore relevant, even where one is the primary carer. A planned family emigration may terminate one habitual residence and establish another very quickly. Equivalent integration in the new state is not required.

The parents and their young child moved from Australia to France in December 2019 after giving up their Australian home and making extensive arrangements to settle in France. During a Christmas visit to England and Wales, the mother informed the father that she and the child would not return to France.

The father applied under the 1980 Hague Child Abduction Convention for the child’s return to France. Judd J dismissed the application after finding that the child remained habitually resident in Australia. She did not determine the mother’s reliance on acquiescence or Article 13(b).

The father appealed. The principal dispositive question was whether the child had become habitually resident in France by the date of retention. Moylan LJ also considered whether the Convention could permit return to a third state, although that question became academic and the other members of the court declined to express a view.

1. Appeal allowed. The child was habitually resident in France when retained in England and Wales. The case was to return to the Family Division, absent agreement, for determination of the Convention exceptions relied upon by the mother.

2. Habitual residence is a question of fact requiring a global, child-focused evaluation of all relevant circumstances. The assessment considers the child’s practical connections with each state said to be a possible habitual residence. It must address both integration in the new state and continuing connections with, or disengagement from, the former state. No prescribed sequence or checklist governs that assessment.

3. Only some degree of integration is required. For an infant or young child, the relevant social and family environment is shared with the people on whom the child depends. The judge therefore erred by focusing too narrowly on the mother’s lack of integration. The position of the father and the family unit as a whole also had to be considered.

4. The whole family had moved to France intending to live there. They had secured a home, brought their possessions and dog, and the father had employment and family connections there. Those circumstances established some integration. The family had simultaneously severed its substantive connections with Australia. Remaining matters such as employment rights, registrations and bank accounts were tenuous and insufficient to preserve Australian habitual residence.

5. A previous habitual residence may be lost, and a new one acquired, extremely quickly. Where a family emigrates after substantial planning and all central members of the child’s life move together, deep historic roots in the former state do not require an equivalent degree of integration in the new state. Moylan and Baker LJJ cautioned against using the see-saw analogy as though equivalence were required. Phillips LJ considered that the analogy remained apt where all weight was removed from one side and some placed on the other.

6. Obiter, per Moylan LJ alone: the 1980 Hague Child Abduction Convention applies where the child was habitually resident in any Contracting State other than the requested state immediately before the wrongful act. Moylan LJ further considered that Article 12 permits return to a third state where this truly effects a Convention return and does not become a welfare-based relocation order. Baker and Phillips LJJ expressly declined to decide that academic question.

1. Court of Appeal (Civil Division): The appeal was allowed. The child was held habitually resident in France at the relevant date, and the proceedings were remitted to the Family Division for determination of the mother’s Convention exceptions.

2. High Court, Family Division: Judd J dismissed the father’s application on 8 April 2020 after finding that the child remained habitually resident in Australia and had not acquired habitual residence in France. The judge consequently did not determine acquiescence or the alleged grave risk under Article 13(b) of the 1980 Hague Child Abduction Convention.