EW v KT

For Hague Convention purposes, habitual residence is determined by the child’s situation immediately before removal. The court must decide whether the child had achieved some degree of integration in the relevant social and family environment. Full integration, a minimum period of residence, permanence, or an intention to remain indefinitely is not required. Parental intention is relevant but not determinative. The enquiry is child-focused and factual, requiring evaluation of all relevant circumstances, including the nature, quality and stability of the child’s residence, family and social connections, and the circumstances of the move. General legal observations must not distract from that enquiry. Where habitual residence in the requested State is not proved, the wrongful-removal requirement in Article 3 is not satisfied and the summary-return application fails.

The applicant father sought the summary return of the parties’ daughter to Poland under the 1980 Hague Convention. The child had been living in England with her mother and had travelled to Poland with her in November 2020. She returned to England on 8 December 2020, after a period marked by disagreement between the parents and wider family about whether the visit was temporary or intended to become permanent.

The father alleged that the child was habitually resident in Poland immediately before her removal. The mother disputed this and relied, in the alternative, on the Article 13(b) exception. The central issues were whether the child was habitually resident in Poland and, if so, whether the harm exception applied.

1. The application for summary return under the 1980 Hague Convention was dismissed. The court found that the child was not habitually resident in Poland immediately before her removal on 8 December 2020. It was therefore unnecessary to determine the Article 13(b) exception or whether to exercise the discretion against return.
2. Under Article 3, the applicant had to prove on the balance of probabilities that the child was habitually resident in Poland immediately before removal. The critical question was the child’s habitual residence at the date of removal, rather than simply when any previous habitual residence had been lost.
3. Habitual residence required some degree of integration in a social and family environment. Full integration was unnecessary. The relevant enquiry remained child-focused and depended on an evaluation of all the circumstances, including the duration, regularity, conditions and reasons for the stay, the circumstances of the move, nationality, language, education, family and social relationships, and the nature, quality and stability of the residence.
4. The court treated parental intention as one relevant factor, but not determinative. No particular period of residence, permanent intention, or intention to remain indefinitely was required. The court cautioned against allowing general observations or legal glosses to displace the factual enquiry.
5. On the facts, the move to Poland was rushed and unplanned. The mother retained her home and employment in England, the child remained connected to English medical and social arrangements, no nursery provision had been arranged in Poland, and the child’s circumstances in Poland were unstable and unsettled. The child had been fully and deeply integrated in England before the visit. Those circumstances did not establish habitual residence in Poland.