BD v BJ

Habitual residence under the 1980 Hague Convention is a factual, child-focused question. It turns on the child’s integration in a social and family environment, assessed with all relevant circumstances. Parental intention is relevant but not determinative. Stability, rather than permanence or a prescribed period, is required.

Consent and acquiescence require clear and unequivocal evidence. Emotional uncertainty, attempts to preserve a relationship and arrangements kept under review will not necessarily establish either defence.

The father applied under article 12 of the 1980 Hague Convention for the summary return of the parties’ four-year-old daughter to Canada. She had travelled from Canada to England with the father’s written consent for an intended six-month period while the parents attempted to repair their marriage.

The parents disputed the duration of that arrangement and whether the father later consented to, or acquiesced in, the child remaining in England. The central issues were the child’s habitual residence at the relevant date and, if necessary, the Convention defences.

1. The application was dismissed. The child was habitually resident in England by at least late February 2023, so her retention was not wrongful within article 3.
2. Habitual residence required a factual, child-focused assessment of integration in a social and family environment. Stability, rather than permanence or a minimum period, was required. Parental intention was relevant but not determinative.
3. The court weighed the child’s substantial Canadian roots against her increasing stability and integration in England through accommodation, nursery, activities, church and family relationships. Her Canadian ties had weakened sufficiently for her habitual residence to shift.
4. Consent and acquiescence were considered although unnecessary. Neither was established. The father’s emotional uncertainty, desire to preserve the marriage and need for a visa did not amount to clear and unequivocal consent or acquiescence.
5. The courts of England and Wales were best placed to decide the child’s future living and contact arrangements.