FB v MG

Habitual residence under the 1980 Hague Convention is a question of fact determined by a child-focused global assessment of the circumstances of the individual child. The court considers whether the child has attained some degree of integration in a social and family environment. Stability, rather than permanence, is relevant, and the enquiry is qualitative rather than a simple calculation of time spent in each country.

For an infant, the social and family environment of the primary carer is significant. Parental intentions may be considered where manifested by tangible steps. The applicant bears the burden of proving the Article 3 conditions. If habitual residence in the requested state is not proved, the summary-return application fails.

The father applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the summary return of his 21-month-old son to Israel.

The child had travelled repeatedly between Israel and England. The father alleged that the child had been habitually resident in Israel and had been wrongfully retained in England from the end of May 2022, alternatively from January 2022. The mother contended that the child had always been habitually resident in England. She relied alternatively on acquiescence under Article 13(a) and grave risk under Article 13(b).

The central issue was whether the father had proved that the child was habitually resident in Israel immediately before the alleged retention.

1. The application was dismissed. The father failed to prove that the child was habitually resident in Israel at the relevant date. It was therefore unnecessary to determine acquiescence under Article 13(a) or the Article 13(b) exception.
2. Habitual residence was determined by a child-focused global analysis of all circumstances specific to the child. The relevant question was whether the child had attained some degree of integration in a social and family environment. Stability, rather than permanence, was required; the assessment was qualitative and not merely quantitative.
3. For an infant, the relevant social and family environment was shared with the person or persons on whom the child depended. The court therefore considered the mother’s habitual residence and circumstances, together with the child’s family relationships, medical care, activities and proposed education.
4. The child had spent approximately 24% of his life in Israel and 76% in England. His meaningful wider family network, medical care, organised activities and anticipated education were in England. He had been primarily cared for by the mother, whose habitual residence was also found to be England.
5. The father bore the burden of proving all ingredients of Article 3 of the 1980 Hague Convention. Since habitual residence in Israel was not established, the alleged wrongful retention and claim for summary return were not made out.