KPW v MJQ

Under the Hague Convention, a court should exercise any power to order a child’s return to a state other than the state of habitual residence with considerable caution. Such an order must procure an effective return, rather than amount in substance to a relocation or welfare order made without a welfare assessment.

Habitual residence is a fact-sensitive question requiring a global and comparative analysis of the child’s connections with the countries concerned. Stability, integration, the duration and conditions of residence, parental intentions, and the child’s age are relevant, but no factor is determinative and residence need not be permanent.

The Father applied under the 1980 Hague Convention on the Civil Aspects of International Child Abduction for the return of his three-year-old daughter from England to the United States. The Mother opposed the application, contending that the child was not habitually resident in the United States, and relying additionally on consent, acquiescence and grave risk.

At the hearing, the Father sought permission to argue alternatively that the child had been habitually resident in Mexico and should nevertheless be returned to Alaska. The court refused to permit that late argument because it had not been prepared by the evidence or case management and would require a welfare assessment. The central issue was whether the child was habitually resident in the United States when her retention became wrongful.

1. Third-state return. The court considered that the existence of a power under the Hague Convention to return a child to a state other than the state of habitual residence was not free from doubt. Assuming such a power existed, it was unusual and had to be exercised with caution. It could not properly be used to procure an effective relocation without the necessary welfare inquiry. The proposed return to Alaska, if the child were habitually resident in Mexico, would in substance be a relocation order and was therefore unsuitable for determination in Hague Convention proceedings.
2. Late alternative argument. The Father’s alternative case was raised at a late stage. There was no evidence or agreement concerning Mexican custody law, and the proceedings had been prepared on the basis that failure to establish habitual residence in the United States would dispose of the application. An adjournment was unjustified because the relief sought was not a summary return but a welfare-based relocation. The Father was not permitted to advance that argument.
3. Habitual residence. The determination was a question of fact, focused on the child and requiring a sufficient global analysis of all relevant circumstances. The inquiry was open-ended and non-formulaic. Relevant considerations included the duration, regularity, conditions and reasons for the child’s stay; family and social relationships; parental intentions; stability rather than permanence; the degree of integration; the child’s age and dependence; and a comparative assessment of the child’s connections with the countries concerned.
4. Application. Although the family had spent the summer of 2024 in Alaska and had taken steps consistent with a possible move there, the child’s connections with Mexico remained stronger. The family returned to Mexico in October 2024, where the child and both parents had established legal, social and family connections. The Mother had no settled intention to move permanently to Alaska and still lacked a green card. The child was not habitually resident in the United States on 24 July 2025. The application was dismissed.