Mother v Father & Ors

Following a non-return decision under the 1980 Hague Convention, habitual residence remains a factual question. The court must conduct a global assessment of all relevant circumstances, including the child’s integration, stability, schooling, relationships, state of mind where relevant, and connections with the former and current jurisdictions. A non-return order does not itself determine habitual residence, but it is a powerful factual factor concerning the stability of the child’s residence. Under the 1996 Hague Convention, jurisdiction may change after wrongful removal where the Article 7 conditions are satisfied. The relevant date should ordinarily be the commencement of the proceedings invoking jurisdiction. The court may grant freestanding declarations where necessary to remove uncertainty concerning habitual residence and welfare jurisdiction.

The children had been wrongfully removed from France to England in August 2022. The mother’s application for their summary return under the 1980 Hague Convention was dismissed in an earlier judgment, [2023] EWHC 2059 (Fam). The children then applied for declarations that they were habitually resident in England and Wales and that the courts of England and Wales had jurisdiction over their welfare and parental responsibility.

The mother opposed or sought an adjournment of the declarations application. The issues were whether the court had jurisdiction to determine the application, the date at which habitual residence and Article 7 jurisdiction should be assessed, whether the children were habitually resident and settled in England and Wales, and whether declarations should be made.

1. Jurisdiction and timing. The court had jurisdiction to determine the declarations application under the interaction of the 1980 and 1996 Hague Conventions. Following Hackney, the relevant date for initially determining jurisdiction based on habitual residence was the date proceedings were commenced, namely 22 August 2023. The same date was used for the Article 7 conditions.
2. Habitual residence. Habitual residence is a question of fact, requiring a global and, where appropriate, comparative assessment of the child’s circumstances. Relevant matters include the duration, conditions and reasons for residence, schooling, family and social relationships, stability rather than permanence, the child’s state of mind where relevant, and the strength of links with each jurisdiction. A non-return order does not impose a legal conclusion that habitual residence has changed, but removes uncertainty and is a powerful additional factual matter.
3. Application to the children. Both children had lived in England for over a year, attended school there, developed friendships and family connections, received medical care and had become integrated into their local environment. Their previous life in France had been comparatively peripatetic. The court therefore found both children habitually resident in England and Wales at the relevant date. The older child’s acquiescence further supported jurisdiction under Article 7. In the younger child’s case, the requirements concerning residence for at least one year, knowledge of whereabouts, settlement and the absence of a pending return application were also satisfied. Exact knowledge of the address was unnecessary.
4. Declarations and access. The court could grant freestanding declarations by drawing on the common law as reflected in the Civil Procedure Rules. It declared that the children were habitually resident in England and Wales and that the courts there had jurisdiction over their welfare, custody, access rights and parental responsibility. Any dispute about contact should ordinarily be addressed under section 8 of the Children Act 1989. Satellite litigation of this kind should generally be identified before the Hague Convention hearing.

First-instance determination of the children’s application for declarations following dismissal of the mother’s Hague Convention return application in [2023] EWHC 2059 (Fam).