BD v BJ
[2023] EWHC 1613 (Fam)
J (Habitual Residence: Acquiescence), Re
8 December 2023
[2023] EWHC 3141 (Fam)
High Court
A dad wanted his child back in Canada, but the judge said no because the child was now settled in England, and the dad had basically okayed the move. The judge thought the child was happy in England and didn't need to move.
Key Facts
- •Father (Canadian) seeks summary return of child J (2 years 10 months) to Canada under the 1980 Hague Convention.
- •Mother (British) opposes the application, citing habitual residence in England, consent, acquiescence, and risk of harm.
- •Parties separated in December 2022 after a significant argument; mother and child travelled to England.
- •Father allegedly agreed to the mother's application for child benefit in England.
- •Father acquired a 25% share in his parents' property without the mother's knowledge.
- •Mother alleges domestic abuse by father and his family.
Legal Principles
Habitual residence of a child is determined by the place reflecting the child's integration into a social and family environment.
Article 3 of the Hague Convention, various case laws cited in section 34
Consent to a child's relocation requires a clear and unequivocal agreement.
Re G (Consent; Discretion) [2021] EWCA Civ 139
Acquiescence requires the wronged parent's subjective consent or passive acceptance of the child's continued presence in the new location. Exceptional cases exist where outward behavior clearly shows non-assertion of the right to return.
Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72; JM v RM (Abduction: Retention: Acquiescence) [2021] EWHC 315 (Fam)
Discretion to order a child's return under the Hague Convention considers swift return, home country decisions, comity, deterrence, individual circumstances, and child welfare.
Re M (Abduction: Zimbabwe) [2007] UKHL 55; Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139
Outcomes
Application for the return of J to Canada dismissed.
Child J was found to be habitually resident in England by May 2023 due to sufficient integration into English life. Alternatively, the father acquiesced to J's continued stay in England.