JWK v DAW

Habitual residence is determined by the child’s actual integration in a social and family environment. Stability, rather than permanence, is required. The inquiry is child-focused, and parental intentions are relevant but not determinative. A child’s habitual residence may change relatively quickly where the evidence shows settled living arrangements, social integration, language development and practical connections in the new country.

Acquiescence under Article 13(a) requires exceptionally clear and unequivocal conduct which leads the other parent to believe that summary return will not be pursued. Under Article 13(b), a significant or unsettling change of home, country or carer does not necessarily constitute grave risk of harm. Comparative assessments of the parents’ homes are generally inappropriate.

The mother applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the summary return of the parties’ four-year-old child from England to the Czech Republic. She alleged wrongful retention on 29 September 2021. The father contended that the child had acquired habitual residence in England by then and relied alternatively on settlement, consent or acquiescence, and grave risk of harm under Articles 12 and 13.

The central issues were the child’s habitual residence at the date of the alleged retention and, if necessary, whether any Convention defence applied. The mother also sought permission for contact in the Czech Republic.

1. Habitual residence. The mother’s application for summary return failed because the child had acquired habitual residence in England between spring 2021 and 29 September 2021. The inquiry was child-focused and concerned the child’s integration in a social and family environment. Stability, rather than permanence, was required, and parental intentions were relevant but not determinative.
2. The relevant circumstances included the child’s seven-month stay in England during an important formative period, his settled attendance at nursery, integration with peers and the paternal family, loss of Czech-language communication, practical connections in England, and the father’s role as primary carer when the mother was absent. The child’s earlier strong connection with the Czech Republic was material, but the previous movement between the countries meant that integration in England could occur more quickly. The mother’s plans were fluid and she had not formed a clear plan to return the child to the Czech Republic by September 2021.
3. Acquiescence. Alternatively, the mother’s conduct after September 2021, viewed cumulatively and in its highly fact-specific context, clearly and unequivocally led the father to believe that she would not assert a right to summary return. Her conduct was inconsistent with such a return and amounted to acquiescence under Article 13(a). The court would, in any event, have exercised its discretion against return.
4. Grave risk of harm. If the habitual-residence and acquiescence findings were wrong, the father’s Article 13(b) defence would fail. Although return would involve a significant change of country, home and primary carer, the child would return to his known mother, and the evidence did not establish grave risk of harm. Absent truly exceptional circumstances, a comparative analysis of the parents’ respective homes was inappropriate.
5. The child’s future was to be determined in England and Wales. Permission for immediate travel to the Czech Republic for contact was refused because the mother’s reaction to judgment was likely to be unsettled and her plans had been fluid.