From “Some Degree” to “Global Balance”: Court of Appeal Redefines the Test for Habitual Residence
Commentary on Re F (A Child) (Habitual Residence) [2025] EWCA Civ 911

Introduction

The judgment in Re F (A Child) (Habitual Residence) delivers one of the most detailed appellate treatments of habitual residence since A v A (2013) and Re B (SC) (2016). At its core lies a seven-year-old child, “F”, wrongfully retained in England after what was supposed to be a three-month visit from Colombia. The mother, invoking the 1980 Hague Child Abduction Convention, sought F’s summary return. Mrs Justice Morgan dismissed her application, holding that F had become habitually resident in England by the time of the father’s retention. The Court of Appeal (Moylan, Newey and Singh LJJ) has now reversed that finding.

The appeal raised four grounds, but the fulcrum issue was whether the judge below applied the correct legal approach to habitual residence. In remodelling the test, the Court of Appeal expressly rejects the shorthand “some degree of integration” formulation that has permeated first-instance decisions for almost a decade. Instead, it installs a mandatory “balanced global analysis,” insisting that courts must weigh the child’s total connections with each competing State.

Summary of the Judgment

• Misdirection Identified: The trial judge treated F’s integration in England as the decisive test and placed the burden on the mother to show that F had “not gained” habitual residence in England.
• Clarification of the Law: The appellate court explained that habitual residence is a pure question of fact requiring a comparative examination of the child’s connections with each country; no single yardstick—such as “some degree of integration”—is determinative.
• Outcome on the Facts: Applying the global analysis, F remained habitually resident in Colombia on 30 May 2024. Her deep roots there and the expressly temporary nature of the visit to England eclipsed any integration accumulated during five months in the UK.
• Next Steps: The matter is remitted to the High Court to decide the father’s Article 13(b) “grave risk” defence; the Court of Appeal expressly states the threshold is high and hints at scepticism.

Analysis

Precedents Cited and Their Influence

1. A v A (Children: Habitual Residence) [2014] AC 1 — introduced the EU-inspired concept of habitual residence as a question of fact centred on “some degree of integration.”
2. Re B (A Child) (SC) [2016] AC 606 — emphasised avoiding “legal glosses” and proposed comparative expectations of disengagement and integration.
3. Re R (Children) [2016] AC 76 — confirmed no rigid “parental intention” requirement and that habitual residence can shift rapidly.
4. Re M (Children) [2021] 2 FLR 60 — warned against treating loss of one habitual residence as the entire enquiry.
5. Re A (A Child) [2024] 4 WLR 49 — first questioned the over-reliance on “some degree of integration” and mandated a “global analysis.”
6. CJEU: Proceedings brought by HR (Case C-512/17) — supplies EU guidance on weighing the child’s presence, social relationships, and parental intentions.

Moylan LJ synthesises these strands, holding that earlier reliance on Re B (FD) [2016] 4 WLR 156 has inadvertently entrenched the misperception that any degree of integration suffices. The Court therefore “re-calibrates” the test.

Legal Reasoning

The Court’s logic proceeds through three layers:

1. No Onus of Proof. Habitual residence resolves jurisdiction; it is not merely an adversarial fact subject to claimant/defendant burdens.
2. Error of Approach. By asking whether “F had not gained habitual residence here,” the judge below placed a thumb on the scales in England’s favour. That “tilted analysis” ignored Lord Wilson’s admonition that courts must compare connections with both States.
3. Application of Global Balance. The Court inventoried F’s Colombian connections (seven years’ residence, schooling, extended family, bilingual upbringing, mother as primary carer) against her English connections (five-month stay, paternal family co-habitation, temporary schooling, extra-curriculars). Critical weight attached to the temporary travel permit and the father’s repeated assurances of return. Result: Colombian habitual residence persisted.

Impact of the Judgment

• Abrogation of “Some Degree” Shortcut. Courts—and practitioners—must abandon the heuristic that “some degree of integration” answers the habitual-residence question.
• Mandatory Comparative Exercise. Judges must demonstrate, on the face of their reasons, that they have balanced connections with each candidate State. Failure to do so will invite appellate reversal.
• Emphasis on Temporary Nature of Stays. Where a child visits under a time-limited arrangement, habitual residence will rarely shift absent unequivocal parental intention and tangible steps towards permanence.
• Re-alignment with International Jurisprudence. The decision harmonises English law with Canadian (OCL v Balev), U.S. (Monasky v Taglieri), and Australian (LK v Director-General) authorities stressing holistic evaluation.

Complex Concepts Simplified

Habitual Residence

The country that is effectively the “centre” of the child’s life, judged by tangible facts (home, school, family ties) rather than legal labels or parental hopes.

Wrongful Retention

Keeping a child abroad beyond the period or contrary to conditions agreed by holders of custody rights.

Global Analysis / Balanced Comparative Exercise

An evidence-based weighing of the child’s links with all relevant States, looking at duration, stability, schooling, family, social life, and parental plans.

Article 13(b) Defence

Under the Hague Convention, a child need not be returned if doing so would expose him/her to a “grave risk” of physical or psychological harm or otherwise place the child in an intolerable situation. The burden rests squarely on the retaining parent.

“Some Degree of Integration” (Deprecated)

A phrase lifted from earlier judgments to express minimum integration, now disapproved as the sole test; integration remains relevant but not determinative.

Conclusion

Re F (A Child) reshapes the habitual-residence landscape in three pivotal ways:

1. It repudiates a mechanical “some degree of integration” yardstick.
2. It mandates a comparative, fact-sensitive, and expressly articulated global analysis of all connecting factors.
3. It re-affirms that temporary sojourns, even with schooling and community involvement, rarely displace deep-rooted habitual residence elsewhere.

For family law practitioners, the message is unmistakable: plead and prove the entire mosaic of the child’s life, not isolated tiles. For judges, the commentary offers a cautionary blueprint: articulate how each factor informs the comparative balance. As the Court of Appeal unequivocally puts it, “the depth and strength of the factors connecting [the child] to Colombia are not counterbalanced, let alone outweighed, by factors which would lead to the conclusion that she had become habitually resident in England.”

By re-centring the enquiry on balanced factual scrutiny, the decision promises greater predictability and alignment with international norms—fortifying the protective purpose of the Hague Convention while preserving the child-centric ethos of English family law.