D v E (Habitual Residence; Consent; Acquiescence)

Habitual residence is a question of fact requiring a global, child-focused assessment of integration in a social and family environment. The court must consider the child’s practical circumstances together with the context and intentions surrounding the move, particularly where the child is very young and dependent on a principal carer. Parental intention is relevant but not determinative. A temporary or fragile relocation undertaken against a background of possible reconciliation may not change habitual residence, despite arrangements suggesting integration in the new country.

Consent under Article 13(a) must be real, positive, clear and unequivocal. Acquiescence requires conduct which objectively leads the other parent to believe that summary return will not be pursued; a parent’s legal advice and correspondence must be assessed as a whole.

The mother applied under the 1980 Hague Convention for the return of X, aged two years and ten months, to Country B. X had lived in Country B with the mother for about two years before returning to England in December 2022. The father accepted that X had previously been habitually resident in Country B.

The father argued that X had become habitually resident in England by April 2023. Alternatively, he relied on the mother’s consent or acquiescence and invited the court to exercise its discretion against return. The central issues were X’s habitual residence at the relevant date, whether the father established either Article 13 defence, and whether a return order should be made.

1. Habitual residence. The court undertook a global analysis of the evidence. X had lived in Country B for two years, had been principally cared for there by the mother, and had developed roots in the mother’s family and social environment. The English arrangements, including a nanny, nursery, activities and residence in the former family home, indicated some integration, but had to be assessed in the context in which they arose.
2. The move to England was not a wholly consensual relocation. It was a fragile and temporary arrangement intended to test whether the parents could reconcile. The mother repeatedly sought reassurance that she could return to Country B with X. The father served divorce proceedings accepting Country B’s jurisdiction and gave written assurances concerning return. Those circumstances outweighed the evidence of developing integration in England. X remained habitually resident in Country B at the relevant date.
3. The father’s removal of X’s passport without the mother’s knowledge or consent therefore amounted to a retention within the scope of the Convention.
4. Consent. The father bore the burden of proof. The evidence did not establish clear, positive and unequivocal consent to X remaining in England. The temporary and uncertain arrangement, together with the mother’s continuing insistence on being able to return to Country B, was inconsistent with consent under Article 13(a).
5. Acquiescence. The correspondence from the mother’s solicitors consistently conveyed opposition to X remaining in England and a wish for immediate return. References to proceedings in England reflected the practical consequences of the father’s unilateral conduct. Taken as a whole, the correspondence did not lead the father to believe that the mother would not assert her right to summary return.
6. The defences were not established. The mother’s application for X to return to Country B was granted.