EC v BM

Habitual residence is determined by the child’s degree of integration in a social and family environment, assessed globally and from the child’s perspective. Parental intention is relevant but not determinative. The test focuses on stability rather than permanence, and the quality of the child’s experience may matter more than the length of the stay.

In exceptional circumstances, a child may lack a habitual residence, particularly where war, family breakdown and repeated movement produce material rootlessness. Article 13(b) issues should distinguish protective measures addressing grave risk from arrangements intended merely to facilitate a comfortable return. Their enforceability in the requesting state must be addressed.

The father sought the summary return of his two young children to the USA under the 1980 Hague Convention, as incorporated by Schedule 1 to the Child Abduction and Custody Act 1985. The mother resisted the application, arguing that the children were not habitually resident in the USA immediately before their removal and, alternatively, that return would expose them to grave risk under article 13(b).

The children had moved between the USA, Ukraine, Italy and England during the period surrounding the Russian invasion of Ukraine. The central issues were their habitual residence on 9 June 2022 and, if necessary, the mother’s article 13(b) defence.

1. Adjournment. The application to adjourn was refused. Applying the fairness test in Solanki v Intercity Technology Ltd & Another [2018] EWCA Civ 101, a fair determination remained possible despite the father’s withdrawal from representation and the absence of oral closing submissions on his behalf. The children’s need for resolution, the evidence already heard, the risk of further delay and the practical uncertainty of a fresh hearing outweighed the alleged prejudice.
2. Habitual residence. The father had not proved, on the balance of probabilities, that either child was habitually resident in the USA on 9 June 2022. The court applied the global approach identified in Re B (A Child: Custody Rights Habitual Residence) [2016] EWHC 2174, as restated in Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659. Integration in a social and family environment is a shorthand, not a substitute for considering all relevant factors.
3. The children had acquired sufficient integration in Italy to be habitually resident there, notwithstanding the parents’ temporary intentions and the absence of parental habitual residence there. The court applied Mercredi v Chaffe EU:C:2010:829, including its emphasis on the young child’s family environment and the duration, conditions and reasons for the stay. The children lost that residence on arrival in the USA. Their subsequent nomadic existence meant that, exceptionally, they had no country of habitual residence until their arrival in England.
4. The court applied the principle in Re B (A child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 that children should not routinely be left without a habitual residence, but concluded that the exceptional facts justified that result.
5. Article 13(b). The court declined to determine the defence. The alleged future abuse did not itself establish grave risk or intolerability on the evidence. The principal unresolved concern was possible separation of the mother and children through arrest or prosecution in the USA. Protective measures had to be distinguished from “soft landing” arrangements, and their enforceability in Florida required evidence. The issue could not fairly be decided without further clarification.
6. The application for summary return was dismissed on habitual-residence grounds.