A Father v A Mother

Habitual residence under the Hague Convention 1980 is a child-focused factual question. The court must undertake a global evaluation of the child’s circumstances, including the degree of integration into a social and family environment and the stability of the residence. Parental intention is relevant but not determinative, and no fixed period of residence or intention to remain permanently is required.

Consent to removal is ordinarily considered under Article 13, rather than as part of the prima facie Article 3 inquiry. Where the children have not acquired habitual residence in the requested state, the Convention’s summary-return mechanism does not apply.

The father applied for the summary return of two children to Italy under the Hague Convention 1980. The children had lived in Italy with both parents for much of the latter part of 2022, but returned to England with their mother on 19 December 2022. The father issued the Hague application on 12 October 2023.

The court considered the circumstances of the removal, the children’s habitual residence at the relevant date, and, if necessary, the mother’s reliance on consent, acquiescence and Article 13(b). The central issue was whether the children had become habitually resident in Italy immediately before their removal or retention.

1. Relevant date and Article 3. The relevant date for habitual residence was 19 December 2022, or at the latest 20 December, when the mother received notice that the father did not consent to removal. Consent was relevant to the Article 13 defence, not to whether there was a prima facie wrongful removal under Article 3.
2. Habitual residence. The court adopted the child-focused, factual approach distilled in Re B (A Child) (Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam), as modified by Re M (Children) (Return Order: Habitual Residence) [2020] EWCA Civ 1105. The inquiry required a global analysis of the children’s circumstances, rather than treating some degree of integration as a substitute for the overall assessment.
3. The children retained strong links with England. Their time in Italy involved temporary accommodation, parental conflict, language difficulties and little evidence of social or family integration. XR’s limited school attendance did not establish that he was settled, and XZ had no independent engagement with life in Italy.
4. The children had therefore not become habitually resident in Italy. The Article 3 conditions were not established. Any application concerning where they should live had to be pursued in England and Wales, where they were habitually resident.
5. Alternative findings. Had it been necessary to decide the Article 13 issues, the father’s consent would not have been established because it was not clear and unequivocal. Acquiescence was also not made out. The court further considered that the allegations of domestic abuse, if true, created a grave risk under Article 13(b), and that the protective measures offered were materially insufficient.
6. The long delay before commencing Hague proceedings and the children’s settled lives in England would also have weighed strongly against return in any discretionary Article 13 assessment. The application was dismissed.