Introduction

The case Petition of F against M ([2021] CSOH 90) adjudicated by the Scottish Court of Session explores the complex interplay between parental agreements and the legal doctrine of habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction. The petitioners, F (the father) and M (the mother), are UK citizens who relocated to New Zealand in 2009. Following marital discord, they returned to the UK in 2020 with their two children, Madeline and Duncan. An agreement was formulated to establish a trial period of residence in the UK, intending to preserve the children’s habitual residence in New Zealand. However, subsequent disagreements led to F petitioning for the return of the children to New Zealand, alleging wrongful retention contrary to the prior agreement.

The central issue revolves around whether the children had acquired habitual residence in Scotland by June 2021, thereby negating the applicability of the Hague Convention for their return to New Zealand.

Summary of the Judgment

Lady Wise, delivering the judgment, concluded that Madeline and Duncan had indeed become habitually resident in Scotland by June 3, 2021. Despite the formal agreement between F and M intending to maintain the children's habitual residence in New Zealand, the court emphasized that actual integration into the social and family environment of Scotland took precedence over the parents' contractual intentions. Consequently, the Hague Convention was deemed not engaged, leading to the dismissal of F’s petition for the children’s return to New Zealand.

Analysis

Precedents Cited

The judgment extensively references significant cases that shape the understanding of habitual residence:

• A v A and Another (Children: Habitual Residence) [2014] AC 1: Established that habitual residence is a factual determination based on the child's level of integration into the social and family environment, moving away from parents' intentions.
• In re B (A child) [2016] AC 606: Introduced the "see-saw" analogy to describe the transition of habitual residence between states.
• M (Children) [2020] EWCA Civ 1105: Reinforced that parental agreements cannot override factual habitual residence determinations.
• In the matter of C (Children) [2018] UKSC 8: Highlighted that wrongful retention can occur even before the expiry of an agreed temporary period.

These precedents collectively underscore that actual circumstances of the child’s living environment supersede any prior agreements between parents regarding residency.

Legal Reasoning

The court's reasoning hinged on the principle that habitual residence is determined by the child’s degree of integration into a social and family environment, not merely by parental agreements or intentions. Despite the formal agreement intended to keep the children's habitual residence in New Zealand, the court found that the children's substantial integration into Scotland—evidenced by stable schooling, social relationships, and family support—constituted a factual shift in habitual residence.

Additionally, the court emphasized that the Hague Convention's purpose is to protect children's welfare over parental agreements, ensuring that decisions are made based on the child's best interests and actual living conditions rather than contractual obligations between parents.

Impact

This judgment reinforces the supremacy of factual habitual residence over parental agreements in child abduction cases, aligning with the progressive interpretation of the Hague Convention by UK courts. It signals to parents and legal practitioners that formal agreements cannot guarantee the preservation of a child’s habitual residence if actual circumstances indicate significant integration into a new environment.

Future cases will likely reference this judgment when assessing the enforceability of parental agreements regarding child custody and residence. It emphasizes that the child's environment and social ties play a critical role in determining habitual residence, thereby prioritizing the child's stability and welfare over parents' contractual intentions.

Complex Concepts Simplified

Habitual Residence

Habitual residence refers to the country where a child has established a permanent and settled home, reflecting their social and family environment. It is determined by the degree of integration into that society, such as attending school, making friends, and having stable living conditions.

Hague Convention on the Civil Aspects of International Child Abduction

An international treaty aimed at protecting children from the harmful effects of wrongful removal or retention across international boundaries. It seeks to ensure the prompt return of abducted children to their habitual residence to safeguard their welfare.

Wrongful Retention

Occurs when a child is wrongfully kept in a country other than their habitual residence, in violation of custody rights, often leading to legal actions under the Hague Convention for their return.

Conclusion

The Petition of F against M judgment underscores a pivotal legal principle: the child's actual habitual residence, characterized by their social and familial integration, takes precedence over any prior parental agreements concerning residence. While parental intentions and agreements are considered, they cannot override the factual circumstances establishing habitual residence under the Hague Convention. This judgment reinforces the Convention's protective objective, prioritizing the child's stability and welfare above contractual agreements between parents. Legal practitioners and parents must recognize that fostering a stable and integrated environment for the child is paramount, as formal agreements alone are insufficient to determine habitual residence in the face of substantive evidence of integration into a new society.