FJ v LT

In an application under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention, habitual residence is determined by the child’s degree of integration in a social and family environment. The inquiry is child-focused, although parental intention and the circumstances of the caring parent may be relevant. No minimum period of residence or intention to remain permanently is required.

Consent under Article 13 must be proved to the civil standard and must be clear, unequivocal, real and communicated. It may be inferred from words and conduct, may be given with reservations, and must remain operative at the time of retention. Once consent is established, the return discretion is at large and is exercised by weighing Convention policy, home-based decision-making, comity and the child’s welfare. On the facts, consent was proved and return was refused.

The mother applied for the summary return of her five-year-old daughter from England to Germany under the 1980 Hague Convention. The child had been born in England, had lived in Poland and Germany, and travelled from Germany to England with her father for an agreed Christmas and New Year visit.

The mother alleged that the father wrongfully retained the child by failing to return her to Germany on 5 January 2023. The father disputed habitual residence and relied primarily on the mother’s consent to the child remaining in England. The issues were the child’s habitual residence, whether consent had been proved, and whether return should nevertheless be ordered in the exercise of the court’s discretion.

1. Habitual residence. The child was habitually resident in Germany immediately before the asserted retention. The relevant inquiry was the child’s integration into a social and family environment, assessed factually and with the child as the focus. The mother’s integration, the settled German household, extended family and Polish-speaking community were relevant to the child’s integration. Full social integration was unnecessary. The child’s short stay in England remained a holiday, and she had not acquired the necessary degree of integration there by 5 January 2023.
2. Wrongful retention. Retention occurs when a child is not returned to the state of habitual residence at the expiry of the agreed period, rather than merely when the child is not returned to a particular carer. The relevant date was 5 January 2023.
3. Consent. Applying the principles summarised in Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139, the mother had clearly and unequivocally consented to the child remaining in England. Her messages, discussions about relocating, participation in arrangements for the move, proposed date for sending the dog and failure immediately to object when told that the return flight had been cancelled demonstrated consent. The court assessed the parties’ conduct in the realities of family life, rather than by contractual standards.
4. Consent remained operative when the child stayed in England on 5 January. The mother’s later change of mind was not communicated until after the retention and could not retrospectively invalidate the consent on which the father had relied.
5. Discretion. The discretion under Article 13 was at large. The court gave relatively little weight to policies counteracting wrongful removal and deterring abduction because consent had been established. Greater weight was placed on the child’s welfare, her substantial integration into life in England, the stability of her circumstances and the practical consequences of summary return. Return to Germany was refused. The child was to remain in England pending determination of the stayed welfare proceedings or agreement between the parents.