B v L

Habitual residence is determined from the child’s degree of stability and integration in a social and family environment. The assessment is child-centred and requires consideration of all relevant circumstances, including the circumstances of both parents where relevant. A parent’s intention to relocate is relevant but does not itself establish or terminate habitual residence.

Under the Hague Conventions, an unmarried father without formal parental responsibility may nevertheless have inchoate rights of custody where his sustained parental involvement, financial provision, agreed future role and legally recognised position justify protection of the existing arrangements. A unilateral removal or retention contrary to those rights may be wrongful.

The father sought declarations concerning the habitual residence of his daughter, the existence and exercise of his rights of custody, and the alleged wrongful removal and retention of the child in Poland. He also sought jurisdictional declarations, parental responsibility and consequential relief.

The mother had taken the child from England to Poland without notice. She initially indicated that the journey was temporary but later decided to remain in Poland. She conceded that the child was habitually resident in England on 7 March 2022, but disputed continuing English jurisdiction and the father’s rights of custody.

The issues were whether the child’s habitual residence had changed before the father’s application, whether the father had and was exercising rights of custody, whether the removal or retention was wrongful, and whether parental responsibility should be granted.

1. Jurisdiction and habitual residence. The court found that the child was habitually resident in England and Wales immediately before removal and remained so when the father issued his application. The evidence did not establish sufficient stability, permanence or integration in Poland. The mother’s stated intention to remain there had only modest significance. The child-centred assessment required consideration of the child’s own integration and all the circumstances of family life, including her relationship with her father and his family.
2. Rights of custody. Applying the liberal and purposive approach under the Hague Conventions, the court held on a fine balance that the father had acquired inchoate rights of custody. Relevant factors included his increasing and regular care, periods of sole care, involvement in nursery and health arrangements, regular financial payments, the parents’ common objective that he should play a full and significant role in the child’s life, and the mother’s view that he should acquire formal parental responsibility.
3. The father was exercising those rights when the mother removed the child. The removal was therefore wrongful. The subsequent decision not to return the child constituted wrongful retention. The court also held that rights of custody were vested in the court by the order of 7 April 2022, although it disagreed that the father obtained rights of custody by that order. That distinction did not affect the outcome.
4. Declarations and further orders. Declarations were made under Articles 5 and 7 of the 1996 Hague Child Protection Convention and Article 15 of the 1980 Hague Convention. The father’s return application was adjourned pending the Polish Hague proceedings. The court granted the father parental responsibility under section 4(1)(c) of the Children Act 1989, applying the child’s welfare as paramount and finding that the father had demonstrated substantial commitment and attachment. The child’s birth was ordered to be re-registered.