M v F & Ors (Rev 1)

In determining jurisdiction in an international child case, consent to a holiday does not amount to consent to permanent relocation. A removal or retention is wrongful where it breaches the left-behind parent’s custody rights under the law of the child’s habitual residence.

Acquiescence is a subjective state of mind assessed objectively from the parent’s words and conduct. The burden lies on the abducting parent. Habitual residence is a child-focused question of fact. The court must examine the child’s integration in the relevant social and family environment without imposing legal glosses or a minimum period of residence. Parental intention is relevant but not decisive. The High Court may exercise parens patriae jurisdiction in an appropriate case involving a British child, but must approach nationality-based jurisdiction with extreme circumspection.

The proceedings concerned three children, P, Q and S, who had been made wards of court in 2011. The Mother applied for findings establishing the jurisdiction of the courts of England and Wales after the Father had taken the children from England in January 2008 and subsequently retained them abroad.

The parties gave sharply conflicting accounts. The Mother said that the family had left for a holiday and that the Father had later prevented her and the children from returning, before separating the children from her in Yemen in 2009. The Father alleged an agreed permanent relocation and later asserted that the Mother had demanded a divorce and transferred the children to him.

The court had to determine wrongful removal or retention, acquiescence, habitual residence, and the availability of parens patriae jurisdiction in respect of S, who had never lived in England.

1. The court found that P and Q left England and Wales on 31 January 2008 for a holiday. The Mother consented to that holiday only. Any intention the Father may have had to relocate permanently was not a settled plan known to, or accepted by, the Mother. The children were habitually resident in England and Wales immediately before departure.

2. The Father thereafter wrongfully retained P and Q outside the jurisdiction when he failed to arrange their return at the conclusion of the intended holiday. He later removed them from the Mother’s care in September or October 2009 and wrongfully retained them thereafter. These acts breached the Mother’s rights of custody and engaged Article 10 of Brussels II Revised.

3. The court applied the principles in Re H (Minors) (Abduction: Acquiescence) [1998] AC 72. Acquiescence required proof of the Mother’s actual state of mind, assessed objectively from her words and conduct. The Father bore the burden. The evidence established repeated requests to return, coercive and violent treatment, and no true acquiescence.

4. Habitual residence remained a factual, child-focused enquiry. The court considered the children’s day-to-day life, family and social environment, schooling, connections and stability. P and Q had not lost their English habitual residence by September or October 2009. Parental intention was relevant but not determinative, and a unilateral parent could in principle change habitual residence without the other parent’s consent.

5. The court rejected the submission that a pending reference to the CJEU required the proceedings to be halted. The Court of Appeal’s decision in Re H (Children) (Abduction: Jurisdiction) [2014] EWCA Civ 1101 remained binding. In respect of S, who had never lived in England or Wales, jurisdiction existed under the doctrine of parens patriae because she was a British child. The exercise of that jurisdiction was reserved for a later hearing.