The Mother v The Father

Habitual residence is essentially a factual question. It should not be overlaid with legal sub-rules or glosses. The central inquiry is whether the child has achieved some degree of integration in the social and family environment, assessed primarily through day-to-day facts. Parental intention is relevant, but its weight depends on the circumstances and cannot displace the factual assessment. A child will ordinarily be habitually resident somewhere rather than nowhere. Permission for a temporary trip does not authorise permanent removal. Where there is no agreement to a permanent move, an open-ended stay abroad may constitute wrongful retention.

The proceedings concerned a two-year-old child born in England to a mother from Ukraine and an English father. The mother and child travelled from England to Poland and then remained in Ukraine. The father sought a declaration under Article 15 of the 1980 Hague Convention that the child had been habitually resident in England and Wales immediately before the removal or retention, and that the removal or retention was wrongful.

The mother argued that the child had no habitual residence, or remained connected with Ukraine, and that the father had consented to the journey. The central issues were the child’s habitual residence, the father’s custody rights and their exercise, and whether the child’s removal or retention was wrongful.

1. Habitual residence. The child was habitually resident in England and Wales immediately before leaving. The test was essentially factual and was not to be overlaid with legal sub-rules or glosses. The relevant question was whether the child was integrated to some degree in the social and family environment.
2. The court placed substantial weight on the child’s life in England: she had been born and lived there, attended nursery and weekly play sessions, was registered with medical and dental facilities, and had regular contact with her father and his family. The mother’s intention to remain only temporarily because of the war was relevant, but the father’s intention that the child should remain in England was unchallenged and, in any event, parental intention did not outweigh the day-to-day facts. The court also applied the usual approach that a person is ordinarily habitually resident somewhere rather than nowhere.
3. Custody rights. The father had rights of custody because he was named on the child’s birth certificate and had parental responsibility. He was exercising those rights through regular weekend contact, which was undisputed.
4. Wrongful removal or retention. On the balance of probabilities, the father consented only to a trip to Poland and did not know that the mother intended to continue to Ukraine. Even if he had known of the journey to Ukraine, there had been no agreement to a permanent move. An open-ended stay was insufficient to establish consent to permanent relocation. The absence of notice to the landlord and nursery, and the failure to arrange the transfer of possessions, supported the conclusion that the journey was intended to be short term.
5. The court accordingly declared that the child had been habitually resident in England and Wales and that her removal or retention in Ukraine was wrongful, being in breach of the father’s custody rights, which were actually exercised immediately before the removal or retention.