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The mother is a Colombian national, the father a British national and the child a Colombian national who had recently been granted British citizenship at the time of the hearing. 

The mother and father married in 2014 and had a child in 2017 in Colombia. The parents separated in 2018. In 2020 the parties reached an agreement on the share care of the child. 

In December 2023 the father travelled to England with the child, with the agreement of the mother. This was the first time the child had visited the UK.

The original travel permit had a return date of April 2024. She enrolled in school in England but her place in Colombian school was kept and paid for. The mother later agreed that the child should stay in England until the end of July 2024 to finish the school year. 

The mother made an application for the return of the child under the 1980 Convention. At first instance this was refused based on the fact that the child was found to be habitually resident in the United Kingdom and so the retention was not wrongful. 

The mother appealed arguing that the child was not habitually resident in the UK. 

Appeal allowed, return ordered. 

Habitual Residence - Art. 3

The first instance judge did not conduct a balanced assessment of the child’s connections with Colombia and England. If the judge had conducted such an assessment, the Court considered that she would inevitably have concluded that the child was habitually resident in Colombia at the relevant date. 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.

The Court held that the determination of habitual residence is not a formulaic exercise because it requires a broad consideration of the child’s and the family’s circumstances and because different factors will be present in different cases with the same factor being more significant in one case than another. 

The Court set out new guidance in determining the habitual residence of the child. The assessment should consider the following elements: (a) it is an issue of fact which requires the court to undertake a sufficient global analysis of all the relevant factors (b) factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent (c) factors of relevance include the duration, regularity, conditions and reasons for the child’s stay in the country, the place and conditions of the child’s attendance at school, and the family and social relationships of the child (d) the intentions of the parents are also a relevant factor and there is no “rule” that one parent cannot unilaterally change the habitual residence of a child (e) it is the stability of the residence that is important, and habitual residence can be acquired quickly (f) the degree of integration of the child into a social and family environment in the country in question is relevant but this does not have to amount to full integration (g) the relevant factors will reflect the age of the child (h) the connections between the child and the country or countries concerned.