X (Child abduction: habitual residence)

This is an appeal in proceedings under the 1980 Hague Child Abduction Convention for the summary return of an eight year old child, X, to Germany. The judge at first instance found that X had been retained in England by the mother and that, as at the date of retention recorded in the order (July 2021), X was habitually resident in Germany. The judge rejected the mother’s defences of consent/acquiescence and Article 13(b) (grave risk/intolerability) and ordered summary return. The Court of Appeal concluded that the judgment correctly found habitual residence in Germany as at September 2020 but that the judge had not analysed whether X had acquired habitual residence in England by the date of retention in July 2021 and therefore had not determined the jurisdictional issue on the evidence at that date. The appeal was allowed in part and the matter remitted for rehearing on the issue of habitual residence as at the date of retention.

Key legal principles applied were the Convention provisions (Articles 1, 3, 4, 12, 13 and 16) and the Supreme Court/CJEU authorities on habitual residence: the inquiry focuses on the child’s integration in a social and family environment, parental intention is a factor but not determinative, and there is no fixed period of residence required. The President’s Practice Guidance on case management and when a child should be heard was also considered.

Background and nature of the application:

• This was an appeal from Mrs Justice Theis (High Court, Family Division) following an application under the Hague Child Abduction Convention 1980 for the summary return of X to Germany. The father was the applicant; the mother was the respondent. The father alleged wrongful retention by the mother in England. The proceedings had earlier been engaged in the Family Court at Newcastle before being stayed when the father indicated he would issue a Hague application.

Material facts and procedural history:

• X was born in 2014. The parties’ accounts conflicted about arrangements for X to live in Germany. X spent a period living with his father in Germany from May 2019 until he came to England on 30 September 2020. The mother had come to England in early 2020 and claimed asylum in July 2020. X remained living with the mother in England and started school there in early 2021. The father issued Hague return proceedings; the first instance judge gave judgment on 25 May 2022 ordering return by 27 July 2022; that order was stayed on appeal. The father subsequently removed X from England to Germany in breach of the return order and further orders were made requiring return but had not been complied with at the date of the Court of Appeal hearing.

Issues before the Court of Appeal:

• (i) Whether the judge was wrong to determine that X was retained in England in July 2021; (ii) whether, if retained in July 2021, X was habitually resident in Germany at that date or whether he had become habitually resident in England; (iii) whether the judge erred in failing to secure a Cafcass report or consider separate representation for the child; (iv) whether the judge should have identified and considered other Convention defences (settlement under Article 12 and Article 20/Human Rights points) that were not pleaded by the mother; and (v) other procedural challenges.

Court’s reasoning and disposition:

• The Court of Appeal accepted that the first instance judge had properly analysed and correctly found that X was habitually resident in Germany by September 2020. The Court observed, however, that the order recorded the date of retention as July 2021 and that the judge’s judgment contained no specific analysis of X’s integration in England at that date. Because habitual residence is jurisdictional under the Convention, the judge should have examined the evidence relevant to the child’s integration in England as at the date of retention (July 2021). The judge had instead largely treated events after September 2020 through the lens of consent/acquiescence, rather than as material to whether habitual residence had shifted to England by July 2021.
• The Court concluded that the judge’s failure to address habitual residence as at the date of retention was material and required a rehearing. It therefore allowed the appeal in part and remitted the application for rehearing, proposing that the matter be allocated to a different Family Division judge. The Court refused the mother’s late application to order the father’s attendance at the appeal hearing, finding no necessity for it. The Court also rejected the argument that the judge was required, of her own motion, to investigate unpleaded defences or to order a Cafcass report where neither party had sought it during the hearing; however, the Court observed that it would have been open to case management earlier to consider a Cafcass interview given the July 2021 retention date.

Appeal allowed in part and the matter remitted for rehearing. The Court accepted the first instance finding that X was habitually resident in Germany as at September 2020 but held that the judge had not analysed whether by the date of retention (recorded in the order as July 2021) X had acquired habitual residence in England. Because habitual residence as at the date of retention is jurisdictional under the Convention, that issue must be determined afresh on the evidence; the matter was therefore remitted for rehearing (allocated to a different Family Division judge). Other grounds (including challenges on the Article 13(b) decision and the absence of a Cafcass report when not requested by the parties) were dismissed or left to the rehearing as appropriate.

Appeal from the High Court of Justice, Family Division (Mrs Justice Theis) [2022] EWHC 1260 (Fam) to the Court of Appeal (Civil Division) [2022] EWCA Civ 1423. Earlier related proceedings were before the Family Court at Newcastle (stay of those proceedings when Hague application notified). The High Court ordered summary return on 25 May 2022 and the order (return by 27 July 2022) was stayed on appeal; the Court of Appeal remitted for rehearing on habitual residence as at the date of retention (July 2021).