J (Habitual Residence: Acquiescence), Re

Under the 1980 Hague Convention, habitual residence is a child-focused question of fact. It turns on the child’s integration into a social and family environment, assessed by the quality and stability of the residence rather than its duration. Parental intention is relevant but not determinative.

Acquiescence also depends primarily on the left-behind parent’s actual state of mind. It may be established by passive acceptance of the child’s continued presence. Alternatively, clear and unequivocal words or conduct which lead the other parent to believe that summary return will not be sought may make it unjust to permit the parent later to assert that right.

The father applied under the 1980 Hague Convention for the summary return of J, aged two, to Canada. The mother opposed the application, contending that J had become habitually resident in England, that the father had consented to or acquiesced in J’s continued stay, and that return would expose J to grave risk under article 13(b).

The child had travelled from Canada to England with the father’s agreement in December 2022 and remained there with the mother. The central questions were J’s habitual residence at the date of the alleged retention, whether the father had consented or acquiesced, and, if necessary, whether the court should exercise its discretion to refuse return.

1. Habitual residence. The application failed because J was habitually resident in England by 20 May 2023. The inquiry was child-focused and factual. The relevant question was whether J had achieved a sufficient degree of integration into England’s social and family environment. The court considered his previous visit, residence with the mother’s family, relationships with extended family, participation in community activities, registration with health professionals, nursery attendance, receipt of English child benefit, and the mother’s settlement and employment. These matters, taken together, established the necessary integration. The continuing features of J’s life in Canada did not prevent that conclusion.
2. Consent. The evidence did not establish a clear and unequivocal agreement that J would move to, or remain in, England indefinitely. The absence of agreement about the duration of the stay was significant.
3. Acquiescence. Alternatively, the father had subjectively acquiesced in J’s continued retention. His conduct included going along with the mother’s application for English child benefit, taking no effective objection to her resignation and J’s nursery enrolment, assisting with closure of the Canadian joint bank account, planning a visit to England, arranging shipment of J’s belongings, and stating that the mother should remain there forever. In the further alternative, those words and actions clearly and unequivocally led the mother to believe that he would not seek summary return. The article 13 exception was therefore established.
4. Discretion. If discretion had arisen, the court would have declined to order return. The court considered the Convention’s restorative purpose, the delay, J’s age and length of residence in England, the uncertain prospects for the mother and child in Canada, the parents’ poor relations, and the availability of domestic welfare proceedings.
5. The application for return was dismissed. The parties were directed to draw up the order giving effect to the decision.