Factual and Procedural Background
Two minor children were born in Country A in August 2010 and June 2013 to unmarried parents. The father, a citizen of Country A, operates a small business there. The mother, a dual citizen of Country B and Country C, works remotely for a Country C employer. With the father’s consent, the mother relocated with the children to Country B in July 2013. The father contends this move was limited to the mother’s 12-month maternity leave, whereas the mother maintains the family intended to resettle away from Country A, deciding later on a permanent location.
Following the move, the family home in City A was sold, the elder child began nursery in Country B, and the father made monthly visits. Relations deteriorated in November 2013, leading the mother to commence residence proceedings in Country B on 20 November 2013 and to seek an order preventing removal of the children.
The father then invoked the Child Abduction and Custody Act 1985, applying for the children’s return to Country A under the 1980 Hague Convention. The Outer House of the Court of Session ordered their return, finding they remained habitually resident in Country A. The Inner House (Extra Division) reversed that decision, holding that by 20 November 2013 the children had become habitually resident in Country B. The father appealed to the Supreme Court, which rendered the opinion summarised here.
Legal Issues Presented
- Whether, immediately before 20 November 2013, the children were habitually resident in Country A or in Country B for the purposes of Article 3 of the 1980 Hague Convention and the Brussels II Revised Regulation.
- Whether the appellate court (Inner House) was entitled to overturn the trial judge’s finding on habitual residence.
- Consequent upon the above, whether the children’s retention in Country B was “wrongful” within the meaning of the Convention.
Arguments of the Parties
Appellant’s (Father’s) Arguments
- The Lord Ordinary applied the correct legal principles and properly concluded that the children retained habitual residence in Country A.
- The Inner House erred by focusing only on events in Country B and by discounting the parents’ shared intention that the stay be temporary.
- An intended 12-month stay cannot confer the requisite stability for a change of habitual residence.
Respondent’s (Mother’s) Arguments
- The Lord Ordinary mistakenly treated a joint parental intention of permanent relocation as a prerequisite for changing habitual residence.
- The children’s and mother’s lives in Country B were stable and integrated: housing was secured, schooling commenced, and day-to-day life occurred there.
- Therefore, by 20 November 2013 the children were habitually resident in Country B, precluding any wrongful retention.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| A v A and another (Children: Habitual Residence) [2013] UKSC 60 |
Defines habitual residence as the child’s integration in a social and family environment; permanence is not required. |
Treated as the primary domestic authority guiding the habitual-residence analysis. |
| In re L (A Child) [2013] UKSC 75 |
Affirms the factual, child-focused nature of the habitual-residence inquiry. |
Cited to show consistency of approach across Supreme Court jurisprudence. |
| In re LC (Children) [2014] UKSC 1 |
Further clarifies habitual residence under the Hague Convention. |
Referenced as part of the unified domestic guidance. |
| Proceedings brought by A (C-523/07) [2010] Fam 42 |
CJEU statement that habitual residence reflects the child’s social and family integration. |
Quoted to align domestic law with EU jurisprudence. |
| Mercredi v Chaffe (C-497/10PPU) [2012] Fam 22 |
For infants, the primary carer’s integration is pivotal; stability, not permanence, is necessary. |
Used to emphasise assessment of the mother’s situation when children are very young. |
| C v M (C-376/14PPU) [2015] Fam 116 |
Reiterates the integration test under Brussels II Revised. |
Cited as confirming alignment between UK and EU standards. |
| DL v EL [2013] FLR 163 |
Highlights linguistic differences (“stability” vs “permanence”) in interpreting CJEU guidance. |
Quoted to show that “stability,” not “permanence,” is the operative concept. |
| In re H (Children) [2014] EWCA Civ 1101 |
Rejects a rule that one parent cannot unilaterally change a child’s habitual residence. |
Referenced to dispel misconceptions about unilateral relocation. |
Court's Reasoning and Analysis
The Supreme Court, per Judge Reed, identified a fundamental error in the Lord Ordinary’s approach. The trial judge focused exclusively on whether both parents intended a permanent move to Country B, treating the absence of such intention as conclusive. This misapplied the guidance in A v A and related cases, which require examination of all circumstances indicating the child’s integration and the stability of the residence, regardless of any long-term permanence.
Assessing the record, the Court noted substantial evidence of integration in Country B: the sale of the family home in Country A; continuous residence in rented accommodation adjacent to maternal relatives; enrolment of the elder child in local nursery; and the mother’s daily caregiving activities centred in Country B. Although the original plan contemplated a 12-month stay, the quality and stability of life established there were sufficient to shift habitual residence.
The Court also rejected the Appellant’s contention that the Inner House had erred. The Inner House correctly applied the integration test, treated the intended duration of the stay as only one factor, and permissibly concluded that four months of settled life was enough to effect a change in habitual residence. Because the Lord Ordinary’s mistake concerned the applicable legal test, the Inner House was entitled to undertake its own evaluation.
Finally, as the children were habitually resident in Country B on 20 November 2013, questions about wrongful retention or parental consent under Article 13 of the Convention did not arise.
Holding and Implications
Holding: The appeal is dismissed; the order directing the children’s return to Country A is set aside, and no return is required.
Implications: The decision reinforces that habitual residence turns on the stability and integration of the child’s life in a jurisdiction, not on parental intentions of permanence or any fixed duration of stay. It also confirms the limited scope of appellate interference: where a first-instance court applies an incorrect legal standard, an appellate court may substitute its own evaluation of the facts. The judgment does not introduce new legal principles but clarifies the application of existing guidance within the United Kingdom.