AC v NC

Under the 1980 Hague Convention, a return application succeeds only if the child was habitually resident in the requested state immediately before the alleged removal or retention. Habitual residence is a question of fact. The court asks whether, by the relevant date, the child had the requisite degree of integration in the new social and family environment. A planned and agreed relocation, supported by detailed arrangements for permanent residence, may produce a rapid change of habitual residence. There is no requirement for equivalent integration in the new state before the former habitual residence is lost, and a period of limbo is highly unlikely. Rights of access may be protected through domestic remedies, but the Convention provides no return remedy for breach of such rights.

The father, a United States national, applied under the 1980 Hague Convention for the return of his four-year-old son to the USA. The child had moved lawfully with his mother from the USA to England pursuant to a marital settlement agreement approved and incorporated into a United States divorce order.

The father alleged that the mother had intended to prevent his agreed periods of parenting time and that the child had therefore been wrongfully removed or retained. The court considered whether the child remained habitually resident in the USA at the relevant dates, and whether the Convention could provide a return remedy for missed access arrangements.

1. Application dismissed. The child was not wrongfully removed on the date of the move to England. The relocation was authorised by the agreement and the United States order. The mother had not, in any event, formed a dishonest intention to deprive the father of his agreed time with the child.
2. Habitual residence under the 1980 Hague Convention is a question of pure fact. The court must determine whether, by the relevant date, the child had become integrated to the requisite degree in a social and family environment in the new state. The relevant circumstances include the duration, regularity, conditions and reasons for the stay, the family’s reasons for moving, nationality, schooling, language and social and family relationships.
3. The child’s habitual residence may change quickly or slowly. The court must examine the links with the former state, the extent to which those links have ended, and the establishment of new links. The see-saw metaphor in Re B (A Child) does not require equivalent integration in the new state before the former habitual residence is lost. A state of limbo is near-impossible.
4. The detailed pre-planning of the permanent relocation, the necessary consents and the arrangements made for long-term residence showed that the child became habitually resident in England well before Easter 2020. The missed Easter visit was not a wrongful retention because the mother had reasonable grounds arising from the Covid-19 pandemic. In any event, by then the child was habitually resident in England.
5. The father’s substantive complaint concerned rights of access. Article 21 of the 1980 Hague Convention requires contracting states to facilitate enjoyment of those rights through a domestic remedy, but it does not provide a return remedy. The court offered to treat the application as a domestic section 8 application, but the father declined. No order was made under the inherent jurisdiction. The only order was dismissal of the application.