Court Determines Child's Habitual Residence in UK and Father's Acquiescence in Hague Convention Child Abduction Dispute

Citation: [2023] EWHC 3141 (Fam)
Judgment on

Introduction

In the case of Re J (Habitual Residence: Acquiescence) [2023] EWHC 3141 (Fam), Mr Justice Cobb of the Family Division of the High Court addresses an application under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The case revolves around disputes between the applicant father and the respondent mother concerning the international relocation and habitual residence of their child, J, and whether the father acquiesced to J’s residence in the United Kingdom.

Key Facts

The father, a Canadian resident, sought the return of his son, J, to Canada under the Hague Convention, claiming wrongful retention by the mother in the UK. The mother resisted, contending that J was habitually resident in the UK, and arguing that the father consented to and subsequently acquiesced in J’s relocation. Additionally, she raised concerns about potential risks to J were he returned to Canada, possibly incurring harm due to the alleged history of domestic abuse.

Crucial to the case was the determination of J’s habitual residence, the establishment of whether the father acquiesced to J’s stay in the UK, and the application of any discretionary powers of the court concerning J’s return.

The case analyses the following legal principles in the context of the 1980 Hague Convention:

  1. Habitual Residence: Mr Justice Cobb applied the established principle that habitual residence reflects the child’s integration into a social and family environment. The judgment referred to various cases, including A v A [2013] UKSC 60 and Mercredi v Chaffe [2012] Fam 22, to affirm that the test for habitual residence is predominantly factual, focusing on the child’s integration into the home environment.

  2. Acquiescence: Mr Justice Cobb examined whether the father’s conduct could be construed as acquiescence to J’s stay in the UK. The case drew upon Re H (Minors) (Abduction: Acquiescence) [1998] AC 72 and JM v RM (Abduction: Retention: Acquiescence) [2021] EWHC 315 (Fam) for defining acquiescence as the wronged parent’s actual state of mind—whether he consented or passively accepted the child’s presence in the new jurisdiction.

  3. Article 13(b) Exception: The court addressed the mother’s claim under Article 13(b) of the Hague Convention, suggesting that a return to Canada would pose a grave risk of harm to J. This principle was not decided upon due to other findings, but it forms an important part of the Convention’s exceptions.

  4. Discretion: Mr Justice Cobb considered that, had habitual residence or acquiescence not determined the outcome, the court’s discretion, as discussed in Re M (Abduction: Zimbabwe) [2007] UKHL 55 and Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139, would have been pertinent. This discretion includes a holistic examination of both policy considerations and the child’s welfare.

Outcomes

The court found that J was habitually resident in England by May 2023, driven by a demonstration of J’s integration into life in the UK. Notably, his attendance at nursery, receipt of child benefit, and his mother’s employment in the UK contributed to this finding.

Further, the court confirmed that the father had acquiesced to J’s stay in the UK. Significantly, the father’s acceptance of J’s nursery enrollment, cooperation with the mother’s employment cessation in Canada, and remarks indicating acceptance of J’s stay in the UK even beyond the summer illustrated this attitude.

Having resolved the case on these grounds, Mr Justice Cobb did not need to base a decision on the mother’s Article 13(b) claims but noted that upon application, UK courts would be capable of swiftly considering welfare orders for J to ensure beneficial arrangements for the father’s contact with his son.

Conclusion

In conclusion, Re J (Habitual Residence: Acquiescence) offers a detailed exemplification of the interplay between factual situations and legal principles concerning the habitual residence of children under the Hague Convention. This case demonstrates the importance of assessing the comprehensive social integration of the child when considering habitual residence, as well as the significance of a parent’s conduct in regard to acquiescence in international child abduction disputes. The judgment enforces the stance that the child’s immediate environment and the left-behind parent’s reactions are vital factors in decision-making under the Hague Convention.