J (Habitual Residence: Acquiescence), Re
[2023] EWHC 3141 (Fam)
BD v BJ
29 June 2023
[2023] EWHC 1613 (Fam)
High Court
Dad wanted his daughter back in Canada, but the judge said she now lives in England because she's settled in well and isn't really connected to Canada anymore. The judge didn't think Dad had clearly given permission for her to stay in England, either.
Key Facts
- •Father applied for a return order under Article 12 of the 1980 Hague Convention for the return of his 4-year-old daughter (B) from England to Canada.
- •The family moved to England in September 2022 for a planned 6-month stay to work on their marriage, with the father's agreement.
- •The parents dispute whether the stay was intended to be for six months only or open-ended.
- •The mother argues that B was habitually resident in England by March 1st, 2023, and that the father consented or acquiesced to her remaining there.
- •The father maintains the agreement was for six months only, and that the mother wrongfully retained B after March 1st, 2023.
Legal Principles
Habitual residence of a child is a question of fact, focusing on the child's integration into a social and family environment.
Re A (A Child)(Habitual Residence: 1996 Hague Protection Convention) [2023] EWCA Civ 659; Re B (A Child)(Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam)
In determining consent under the Hague Convention, the court considers the words and actions of both parents, focusing on whether consent was clear and unequivocal, not applying strict contractual principles.
Re G (Children) (Abduction: Consent/Discretion) [2021] EWCA Civ 139
Acquiescence requires clear and unequivocal words or actions showing the wronged parent did not intend to assert their right to the child's return.
Re H (Abduction: Acquiescence) [1997] 1 FLR 872
Outcomes
The father's application for a return order was dismissed.
The court found that B's habitual residence had shifted to England by late February 2023, due to her integration into her life in England, and the weakening of her ties to Canada.
The defenses of consent and acquiescence were not made out.
While the father was in an emotional state and the mother was optimistic about remaining in England, the court did not find clear and unequivocal evidence of consent or acquiescence by the father to B's continued presence in England.