F (A Child), Re (Habitual Residence)

Factual and Procedural Background

The mother appealed the dismissal of her application under the 1980 Hague Child Abduction Convention concerning the wrongful retention of the parties' child, referred to as F, who was seven years old. F had lived exclusively in Colombia until traveling to England at the end of 2023 for an agreed temporary stay of just over three months. The parents separated in 2018, with F living primarily with the mother and having contact with the father. The visit to England was to see the paternal family and to obtain a British passport for F, with a return date set for April 2024. The father and F traveled to England together, staying with the father's parents. The mother joined them in England in January 2024 but returned to Colombia in April 2024 due to work commitments, leaving F behind because her passports were unavailable at that time.

The judge below found that the father wrongfully retained F in England from 30 May 2024, contrary to the parties' agreement, but determined that F was habitually resident in England and Wales at that date, rendering the 1980 Convention inapplicable. The mother challenged the legal approach to habitual residence, the relevance of evidence considered, and the correctness of the decision. The appeal court found the judge's decision flawed and concluded that F remained habitually resident in Colombia at the relevant date. The case was remitted for rehearing on other grounds under the Convention.

Legal Issues Presented

1. Whether the judge applied the correct legal test in determining the child's habitual residence at the date of wrongful retention.
2. Whether the judge erred in considering evidence post-dating the relevant date of wrongful retention.
3. Whether the factual conclusion that the child was habitually resident in England and Wales at the relevant date was supported by the evidence.
4. Whether the appeal court should substitute the judge's finding on habitual residence without a rehearing.

Arguments of the Parties

Appellant's Arguments (Mother)

• The judge applied an incorrect legal approach by focusing disproportionately on the child's integration in England rather than conducting a balanced comparison with Colombia.
• The judge wrongly took into account immaterial evidence occurring after the date of wrongful retention, such as school reports and changes in living arrangements.
• The judge's conclusion that the child was habitually resident in England was unsupported by the facts, given the child's deep roots and primary home in Colombia and the temporary nature of the visit to England.
• The judge improperly placed the burden on the mother to prove that the child had not gained habitual residence in England, rather than determining where the habitual residence lay.
• One ground challenging the date of wrongful retention was abandoned during the hearing.

Respondent's Arguments (Father)

• The judge applied the correct legal test and considered the relevant factors, including the child's connections with both Colombia and England.
• The judge reasonably found the child had achieved habitual residence in England by the relevant date, supported by school attendance, social integration, and the mother's presence in England for part of the period.
• The judge's phrasing of the issue as whether the child had "not gained" habitual residence in England was a distinction without practical difference.
• The inclusion of some evidence post-dating the relevant date was a matter of form rather than substance, as the judge is presumed to have taken proper account of relevant matters.
• Factors such as the child's life with the paternal family, extra-curricular activities, and healthcare registrations supported habitual residence in England.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re B (A Child) (Custody Rights: Habitual Residence) [2016] 4 WLR 156 ("Re B (FD)")	Summary of habitual residence focusing on integration in social and family environment and need for comparative analysis.	The judge relied on this case but the appellate court found the summary, if taken literally, liable to mislead and contribute to flawed analysis.
In re X (A Child) [2023] 4 WLR 46 ("Re X")	Clarification that habitual residence is not a mere adversarial issue and burden of proof is not fixed on one party.	Appellate court emphasized the objective nature of habitual residence determination, rejecting the judge’s apparent burden placement on the mother.
Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2021] 2 FLR 60 ("Re M")	Warning against focusing solely on whether a child has lost previous habitual residence without balanced comparison.	Appellate court identified the judge’s approach as an alternative form of tilted analysis contrary to the balanced test required.
Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 ("Re B (SC)")	Recognizes habitual residence as a question of fact focused on child's situation and connections.	Cited to support the need for balanced analysis and avoidance of legal glosses distorting factual inquiry.
Piglowska v Piglowski [1999] 1 WLR 1360	Judges' reasons should be read on the assumption they understand the proper matters to consider.	Respondent cited to argue that the judge’s inclusion of post-dated evidence was a formal, not substantive, error.
Proceedings brought by HR (Case C-512/17) [2018] Fam 385	Habitual residence requires a global, comparative analysis of the child's integration and the duration, regularity, and reasons for stay.	Appellate court emphasized this case as authoritative guidance for the proper approach to habitual residence.
In re G-E (Children) (Hague Convention 1980: Repudiatory Retention and Habitual Residence) [2019] 2 FLR 17 ("Re G-E")	Comparative nature of habitual residence analysis and relevance of parental intentions and tangible steps.	Used to underline the need for a comparative balancing exercise in habitual residence determinations.
In re B (A Child) [2020] 4 WLR 149 ("Re B (EWCA)")	Reinforces the comparative exercise and practical connection ("proximity") as the basis of habitual residence.	Supported the appellate court’s emphasis on practical connection and balanced consideration of factors.
In re J (A Child) (Finland) (Habitual Residence) [2017] 2 FCR 542 ("Re J")	Habitual residence is a question of fact requiring consideration of old and new lives of the child and family.	Quoted to stress the flexible, fact-dependent nature of habitual residence inquiries and the need for sufficient analysis.
Re R [2017] UKSC 1	Parental intention is relevant but not determinative; habitual residence can change quickly.	Appellate court relied on this to reject the notion that parental intention to move permanently was essential to change habitual residence.
A v A and another (Children: Habitual Residence) [2014] AC 1	Habitual residence is essentially factual, focusing on the child's situation and practical connection.	Repeated to emphasize avoidance of glosses and the factual nature of habitual residence.

Court's Reasoning and Analysis

The appellate court undertook a detailed review of the legal principles governing habitual residence under the 1980 Hague Child Abduction Convention and relevant case law. It identified that habitual residence is a question of fact requiring a global and comparative analysis of the child's integration and connections with the relevant jurisdictions at the date of wrongful removal or retention.

The court found that the judge below erred in focusing predominantly on the child's degree of integration in England, treating this as the decisive factor, while failing to properly balance this against the child's deep and longstanding connections with Colombia. The judge's approach was described as a "tilted balance" because she framed the question as whether the child had "not gained" habitual residence in England, rather than where the child was habitually resident, thereby distorting the analysis.

The appellate court emphasized that the temporary nature of the child's visit to England, the mother's return to Colombia, and the child's established life and primary home in Colombia were critical factors that the judge failed adequately to weigh. The judge also improperly considered evidence post-dating the relevant date, which was irrelevant to the habitual residence determination.

Applying the correct legal test, which requires a comparative and balanced assessment of all relevant factors, the court concluded that the child remained habitually resident in Colombia at the date of wrongful retention. It noted the temporary, agreed nature of the visit to England and the absence of strong countervailing factors to overcome the child's profound ties to Colombia.

Consequently, the appellate court allowed the appeal, substituting the finding on habitual residence, but remitted the case for rehearing on the issue of whether the father could establish the Article 13(b) defence of grave risk of harm, which was not determined below.

Holding and Implications

The court's final decision was to allow the appeal and substitute the lower court's finding on habitual residence. The court held that the child was habitually resident in Colombia at the date of wrongful retention in England, not in England and Wales as previously found.

The direct effect of this ruling is that the 1980 Hague Child Abduction Convention applies to the case, requiring the child's return to Colombia unless a defence under the Convention is established. The case was remitted for rehearing on the question of the father's Article 13(b) defence concerning grave risk of harm.

No new precedent was established by this decision; rather, the court clarified the correct application of existing legal principles regarding habitual residence and emphasized the necessity of a balanced, fact-specific analysis considering all relevant factors and jurisdictions.