L v D

Habitual residence is determined by a child-focused factual assessment of the child’s integration in a social and family environment. The inquiry requires attention to the stability, rather than permanence, of that integration. Parental intention is relevant but not determinative. Where competing jurisdictions are asserted, the court must consider the child’s connections with each jurisdiction and the child’s life before and after the move. A child need not be fully integrated before acquiring habitual residence. In this case, the child’s school, family, friendships and activities in England established sufficient integration there. The retention was therefore not wrongful under Article 3 of the Hague Convention, and the application for summary return was dismissed for want of jurisdiction.

The mother applied under the 1980 Hague Convention, as incorporated by the Child Abduction and Custody Act 1985, for the summary return of the parties’ eight-year-old child to Colombia. The child had travelled to England with the father with the mother’s agreement for a temporary visit, schooling, family contact and passport arrangements. She remained in England after the agreed travel period.

The father disputed the alleged date of wrongful retention and argued that the child was habitually resident in England. He also relied on Article 13(b), the child’s objections and, initially, acquiescence. The central issue was whether the child was habitually resident in Colombia or England and Wales at the relevant date.

1. Relevant date. The relevant date was 30 May 2024, rather than 30 July 2024. Although the mother had agreed that the child could remain until the end of the school term, her continuing and unequivocal requests for return meant that the later date did not alter the analysis.
2. Applicable approach. Habitual residence is a question of fact centred on the child’s circumstances. The inquiry concerns some degree of integration in a social and family environment. It must consider the stability, rather than permanence, of the child’s residence. Parental intention is relevant but not determinative. The child’s existing roots and connections with the former jurisdiction must be considered alongside integration in the proposed destination.
3. Application. Before travelling, the child had deep social and family roots in Colombia. However, by the relevant date she had lived in England for several months, attended school, made friends, engaged in ballet and other activities, attended church groups, and become integrated into her paternal family. Her mother’s agreement to continued schooling, even if pragmatic, also illustrated the child’s developing integration.
4. The child had acquired a sufficient and significant degree of social and familial integration in England and Wales. Her habitual residence was therefore in England and Wales at both the May and July dates.
5. Because the child was not habitually resident in Colombia immediately before the alleged retention, the retention was not wrongful under Article 3. The Article 13(b) defence did not arise, and it was unnecessary to determine it.
6. The mother’s application for summary return was dismissed for want of jurisdiction.