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The parents were married in January 2017, the father was a national of the United States and the mother of Hong Kong.  They had a child in September 2017, born in Hong Kong and with both US and Hong Kong nationality. 

In April 2019 the father was told that his Hong Kong work visa would expire in June 2019. On 30 June 2019 the family moved to the USA. The mother claims this was for a temporary period and that her and the child could move back to Hong Kong at any time. 

The family were in the USA for a total of 59 days before the mother returned to Hong Kong with the child to finalise her Green Card. She received her Green Card in September 2019 but did not inform the father and refused to return to the USA. 

The father made an application under the 1980 Hague Convention for the return of the child to the USA. The key issue was whether the child’s habitual residence was in the USA prior to her being unilaterally retained in Hong Kong. 

The court held that the child’s habitual residence remained in Hong Kong. In light of this decision, the retention of the child in Hong Kong could not be considered wrongful. 

Habitual Residence - Art. 3

Though a child can acquire “habitual residence” within a very short time, it is really the quality of the child’s residence which is relevant.  In the present case, there was no sufficient evidence that there was sufficient degree of integration by either the mother or the child in a social and family environment.