Amine v Amine

In child abduction proceedings under the 1980 Hague Convention, habitual residence depends on the children’s integration in a social and family environment, assessed in context. Children do not acquire habitual residence merely by arriving in a country, particularly where they have no home, school or established family life there.

A parent exercises rights of custody by maintaining the stance and attitude of a custodial parent. Day-to-day care and control are unnecessary where the parent is actively seeking contact and the children’s whereabouts are concealed. Under Moroccan law, permission to travel temporarily is distinct from permission to relocate permanently. A child’s objections may carry little weight where they have been acquired from an adult, and the child’s age and maturity must be assessed separately.

This was the father’s third application for the summary return of his two children from England to Morocco under the 1980 Hague Convention. The parents, who held British and Moroccan nationality, had divorced. The children had lived in Morocco since 2016, subject to two earlier abductions to England and return orders made by Parker J and Cohen J.

The mother argued that the children had become habitually resident in England on arrival, that the father was not exercising rights of custody, and that the children objected to return. She also relied on Moroccan court decisions which, she argued, permitted relocation to England. The issues were habitual residence, custody rights, the effect of the Moroccan decisions, and the children’s objections.

1. Return ordered. The children were habitually resident in Morocco when removed to England in November 2019. The application for their summary return was therefore granted.
2. The court adopted the test in A v A [2013] UKSC page 60, as explained in Re B [2016] EWHC 174 at paragraph 17. Habitual residence requires some degree of integration by the children in a social and family environment. The assessment depends on numerous factors, including the reasons for the family’s stay. The children could not have acquired English habitual residence immediately upon arrival when they had no home, school, family or established social life there.
3. The father was exercising rights of custody. The correct approach under Article 3 of the Convention is that a custodial parent must maintain the stance and attitude of such a parent; continuous day-to-day care and control are not required. The father had repeatedly sought return orders, location orders, Moroccan court orders and contact, but had been unable to see the children because their whereabouts were concealed. The court applied Re H (Minors)(Abduction, Custody Rights); Re S (Minors)(Abduction, Custody Rights) [1991] AC at 476.
4. Article 179 of the Moroccan Family Code distinguished temporary travel from permanent relocation. The Moroccan decisions refused an injunction preventing travel, but did not grant permission to relocate. The mother had neither the father’s consent nor a court order permitting permanent relocation.
5. Ayoub, aged almost 10, was sufficiently mature for his views to be considered. Fatima, aged six, was not sufficiently mature. The court found that Ayoub’s expressed objections had been acquired from the mother and were expressed in adult language. They therefore did not establish a defence. In any event, the court stated that it would have exercised its discretion in favour of return.
6. The mother was required to fund the flights and return with the children to Morocco when safe. Earlier “soft landing” arrangements were repeated. The mother was ordered to pay the father’s costs on the indemnity basis.

The judgment described two earlier Hague Convention proceedings. Parker J ordered the children’s return to Morocco on 20 December 2017; permission to appeal was refused by Moylan LJ. Cohen J made a further return order on 16 May 2018; permission to appeal was refused by Davis LJ. This judgment concerned the father’s third return application.