M (Children): The correct approach to the issue of habitual residence

Photo by Christian Wiediger on Unsplash

In M (Children : Habitual Residence : 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105 the Court of Appeal considered the correct approach to be taken by the court in deciding the issue of habitual residence, in the context of an appeal by a mother against a return order.

The background facts to the case were as follows:

1. The children are aged 6 and 8. They and their parents were all born in Germany.

2. The parents married in 2014 and separated in 2017. The children remained in the primary care of the mother.

3. The father has always lived and continues to live in Germany.

4. In July 2018 the parents agreed that the children would come to live in England with the mother and her partner. It was also agreed that they would stay in England "until approximately 2019" and that, in December 2018, the parents would "evaluate the situation regarding the rotation between the mother's home and the father's home", and would "adjust the current situation and implement improvements". The children were to spend "nearly equal" time with each parent. In addition it was agreed that the children's home would remain in Germany.

5. In accordance with the agreement the mother and children moved to England in July 2018. The children began attending school in England in September and "settled quickly".

6. In December 2018 the parents, as had been agreed, reviewed the situation through mediation. Exactly what was agreed was in dispute, but "the main thrust" was that the children would return to Germany with the mother at "some point in the summer" of 2019.

7. In July 2019, the mother found out that she was pregnant. This led her to "consider the arrangements that the parents had made" and to decide that she would not return to Germany. She sent an email to the father saying that "she intended to remain with the [children] in England".

8. The father issued his Hague application.

9. The application was heard by HHJ Wallwork. He found that the mother had retained the children, in breach of the agreement between the parents, at the end of July 2019.

10. As explained by Lord Justice Moylan, giving the leading judgment of the Court of Appeal:

"The principal issues the judge had to decide were: (i) where were the children habitually resident at the end of July 2019, for the purposes of determining whether their retention was or was not wrongful; and (ii) had the mother established the Article 13(b) exception. He decided that the children had not "lost" their habitual residence in Germany by July 2019 so remained habitually resident there. He also decided that it would not be intolerable for the children to return to Germany. Accordingly, he made an order that the children should be returned to Germany on a date in April 2020."

11. The mother appealed.

As indicated in paragraph 10 above, the focus of the judge was whether the children had lost their habitual residence in Germany (he decided that they had not, because of their regular contact with their father, and their continuing connections with Germany). This, said Moylan LJ, led the judge astray:

"Habitual residence is ... a question of fact which requires a global analysis of all the relevant circumstances in order to identify the child's habitual residence at the relevant date, namely the date of the wrongful abduction or the wrongful retention. In my view, the judge reached a different decision to that which a factual enquiry would have produced as a result of asking, not where the children were habitually resident as at the end of July 2019 but whether they had by then lost their German habitual residence. This resulted in the judge's analysis having the wrong focus."

He went on:

"This can be seen from the following ... the judge identified as the "difficult task" for him as being "to evaluate whether [the children] had lost [their] connection with Germany as they gained the position in" England ... this gives the impression that the judge considered that the children had to have lost their connection with Germany before they could become habitually resident in England. This can also be seen from the judge's later observation ... that if there had been "no contact with the father … then it may be that a change in terms of their integration and their habitual residence would have been found".

He concluded:

"If the judge had asked himself the "essential question" ..., namely whether the children, as at the end of July 2019, had achieved a sufficient degree of integration into a social and family environment in England such that their residence here was habitual, I have no doubt that he would have concluded that they had.

"The children had moved here with their primary carer in July 2018. They established their home here with her. They intended to stay for "12 months or so". They went to school in England. They "settled quickly" in part because they were familiar with the place to which they had moved and "loved" the local environment. They spent significantly more of the year up to July 2019 in England than they did in Germany. They clearly became integrated not to "some degree" but to a very substantial degree in a social and family environment in this country."

Accordingly, the appeal was allowed (obviously it was not necessary to consider the Art 13(b) defence).

You can read the full judgment here.