X (Child abduction: habitual residence)

In proceedings under the Hague Child Abduction Convention, habitual residence must be determined at the date of the alleged wrongful removal or retention. The inquiry concerns the child’s degree of integration in a social and family environment and goes to the court’s jurisdiction to order summary return.

Once the retention date has been identified, the court must examine the evidence of the child’s integration at that date. It cannot confine its analysis to habitual residence at an earlier date or treat later evidence solely as relevant to consent. Although the parties must identify their cases clearly, their failure to articulate this jurisdictional issue does not remove the court’s responsibility to determine it.

The father sought the summary return of his eight-year-old son to Germany under the Hague Child Abduction Convention 1980. The child had lived in Germany from May 2019 before travelling to England in September 2020 and remaining with his mother. The father alleged retention in July 2021.

The High Court found that the child had become habitually resident in Germany, that the father had not consented or acquiesced in his permanent stay in England, and that the Article 13(b) defence was not established. It ordered the child’s return: [2022] EWHC 1260 (Fam).

The mother appealed. The central issue was whether the judge, having identified July 2021 as the retention date, had failed to determine the child’s habitual residence at that date by examining his integration in England during the preceding ten months.

1. Appeal allowed and matter remitted. The order recorded July 2021 as the date of retention. The Court of Appeal therefore proceeded on that basis despite the absence of an express finding in the judgment. The judge had not analysed whether, by July 2021, the child had acquired the necessary degree of social and family integration in England. Her analysis instead concentrated on his integration in Germany before September 2020 and treated later events principally as relevant to consent.
2. Habitual residence is not merely an adversarial issue on which the judge chooses between the parties’ submissions. It goes to the court’s jurisdiction to order summary return under the Convention. After identifying the retention date, the court must determine the child’s habitual residence at that date. Evidence concerning parental consent may form part of the factual assessment of the child’s integration rather than operating only as a defence.
3. The child had lived in England for ten months and attended school before July 2021. It was therefore arguable that he had acquired habitual residence here. That question required factual determination at first instance and could not properly be resolved for the first time on appeal.
4. The challenge to the finding that the child was habitually resident in Germany in September 2020 was rejected. That finding followed a careful assessment of the evidence. The Court also rejected the contention that the judge was required to investigate Convention defences which the professionally represented mother had neither pleaded nor raised.
5. The failure to obtain a Cafcass report or consider separate representation did not independently justify allowing the appeal. Although consideration of a Cafcass interview at the case-management stage would have been strongly arguable, neither party had raised it before or during the final hearing.
6. The Court made no determination concerning the Article 13(b) defence. The father’s subsequent unlawful removal of the child to Germany and any protective measures would require fresh consideration if the application were reheard. The case was remitted to the President of the Family Division for allocation to a different judge.

1. Court of Appeal (Civil Division): The appeal was allowed because the High Court had not determined habitual residence by reference to the child’s integration at the identified retention date. The application was remitted to the President of the Family Division for allocation to another judge: [2022] EWCA Civ 1423.
2. High Court, Family Division: Theis J ordered the child’s summary return to Germany after finding that he was habitually resident there, that consent or acquiescence had not been established, and that the Article 13(b) defence failed: [2022] EWHC 1260 (Fam).