No: FD25P00282 - [2025] EWHC 2144 (Fam)

Having, determined that this is a case which potentially falls within the Convention, I must then consider the question of B’s habitual residence. A helpful summary of the law governing the determination of a child’s habitual residence was recently provided by Moylan LJ in Re F(A Child) (Habitual Residence) [2025] EWCA Civ 911 at [58] to [59]:

“[58]In conclusion, I start by reiterating part of what Black LJ said in Re J, namely first that there is no "prescribed route" and not "only one way in which to approach the making of a finding of fact about habitual residence" and secondly that "the scope of the enquiry depends entirely on the particular facts of the case" with the nature and extent of the analysis depending on the circumstances of the particular case. As with any judgment, what is important it that there is a sufficient analysis and explanation of the court's determination.

[59] The determination of habitual residence is not a formulaic exercise because it requires a broad consideration of the child's and the family's circumstances and because different factors will be present in different cases with the same factor being more significant in one case than another. Accordingly, as was said in the case of HR, at [54], "guidance provided in the context of one case may be transposed to another case only with caution". With those caveats, I set out the following elements (which are not intended to be exclusive) drawn from the cases:

(a)

"The identification of a child's habitual residence is overarchingly a question of fact": Re B, at [46]. It is "focussed on the situation of the child": Re A, at 54(v) and Re R, at [17]. It is an issue of fact which requires the court to undertake a sufficient global analysis of all the relevant factors. There is an open-ended, not a closed, list of potentially relevant factors;

(b)

As set out, for example, in Proceedings brought by HR, at [41]: "In addition to the physical presence of the child in the territory of a [member] state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent";

(c)

Factors of relevance, as set out in Proceedings brought by HR, at [43], and reflected in many other domestic cases, include: "the duration, regularity, conditions and reasons for the child's stay in the territory of the different [member] states concerned, the place and conditions of the child's attendance at school, and the family and social relationships of the child in those member states";

(d)

The intentions of the parents are also a relevant factor and there is no "rule" that one parent cannot unilaterally change the habitual residence of a child: Re R, at [17];

(e)

As set out in Re R, at [16], it is "the stability of the residence that is important, not whether it is of a permanent character" but there "is no requirement that the child should have been resident in the country in question for a particular period of time" because habitual residence can be acquired quickly: e.g. A v A, at [44];

(f)

The "degree of integration of the child into a social and family environment in the country in question" is relevant, Re R, at [17]. It is clear that "full integration" is not required, "Re B (SC)", at [39], but only a degree sufficient to support the conclusion, when added to the other relevant factors, that the child is habitually resident in the relevant state;

(g)

The relevant factors will reflect the age of the child (see Mercredi v Chaffe [2012] Fam 22, at [53]-[55]; A v A, at [54(vi], and Re LC, at [35]). Accordingly, "The social and family environment of an infant or young child is shared with those (whether parents or others) on whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned": Re A, at 54(vi);

(h)

The court is considering the connections between the child and the country or countries concerned: A v A, at [80(ii)]; Re B (SC), at [42]; and Proceedings brought by HR, at [43]. This is a comparative analysis as referred to, for example, in Re M, at [60]; Re B (EWCA), at [86]; and Re A, at [46]. As observed by Black LJ in Re J, I repeat:

"What is important is that the judge demonstrates sufficiently that he or she has had in mind the factors in the old and new lives of the child, and the family, which might have a bearing on this particular child's habitual residence."

An example of this is seen in Re B (SC) in which Lord Wilson, at [49]-[50], referred to the factors which pointed to the child having "achieved the requisite degree of disengagement from her English environment" and those which pointed to the child having "achieved the requisite degree of integration in the environment in Pakistan".

Here, as I have found, the wrongful retention had occurred by 28 September 2024. At that stage I do not consider that B’s circumstances in England and Wales had acquired the necessary stability and degree of integration to amount to habitual residence. Although Ms Green refers to events which, she says, have caused B to become integrated into his English environment, such as his enrolment into a pre-school and being registered with a GP, these all took place some time later. As of late September B had been in England for a matter of a few weeks on what had been intended to a relatively short and temporary holiday. By contrast B had lived all of his life in New Zealand prior to 2 September and that country was plainly his home. In this context I note the comments of Moylan LJ at [62] in Re F where he stated that the depth and strength of that child’s connection with Columbia would have required strong countervailing factors to justify the conclusion that she had become habitually resident in England in a short period of time. Similar considerations apply here and in the absence of any strong countervailing factors, I consider that B remained habitually resident in New Zealand as at the date of wrongful retention.

I should add, that if I am wrong about the precise date of wrongful retention and it did not occur until later in October 2024, I consider that the same analysis would apply and B would have remained habitually resident in New Zealand as at that date.