BD v BJ
[2023] EWHC 1613 (Fam)
D v E (Habitual Residence; Consent; Acquiescence)
26 July 2023
[2023] EWHC 1941 (Fam)
High Court
Mom and Dad split up. They argued about where their daughter should live – Country B or England. The judge decided that the daughter's real home is still Country B, even though she lived in England for a while, and sent her back.
Key Facts
- •Mother applied under the Hague Convention for the return of her 2-year-old daughter, X, to Country B.
- •Father opposed the return, arguing X's habitual residence was in England and/or that the mother consented or acquiesced to X remaining there.
- •X was born in England, lived in Country B from December 2020 to December 2022, then returned to England with the mother.
- •Parents separated in April 2023. Father took X's passport without the mother's knowledge.
- •The key date for determining habitual residence is April 12, 2023.
- •The mother is a dual citizen of Country B and the UK, while the father is a dual citizen of the UK and Ireland.
- •Both parents are professionals. The mother had renewed her UK practicing certificate and had a 6-month contract ending in mid-July 2023.
- •The parents exchanged numerous documents concerning X's travel and residence, including an affidavit of consent signed by the father.
Legal Principles
Habitual residence is determined by the child's degree of integration into a social and family environment.
E v D [2022] EWHC 1216 (Fam), Re A (Area of Freedom, Security and Justice) and Mercredi v Chaffe [2011] 2 FLR 515
Consent under Article 13a of the Hague Convention must be real, positive, clear, and unequivocal.
Re P-J (Children)(Abduction: Consent) [2010] 1 WLR 1237 (CA)
Acquiescence requires the wronged parent's subjective intention not to assert their right to summary return, evidenced by words or actions.
In re H and others (Minors)(Abduction: acquiescence) [1998] AC 72
The Hague Convention only applies to wrongful removals or retentions, which breach the rights of custody of the left-behind parent.
In re C [2019] AC 1
Outcomes
Mother's application for X's return to Country B is granted.
The court found that X's habitual residence remained in Country B in April 2023, despite some integration into a social and family environment in England. The court rejected the father's defenses of consent and acquiescence.