Both Singapore and the United Kingdom are signatory states to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the 1980 Convention). The Convention is given domestic legal effect in the UK by the Child Abduction and Custody Act 1985 (the 1985 Act).
The writer recently handled an application by a left-behind father for the summary return of his daughter to Singapore from England, following the abduction by the mother of one of their two children.
The primary issue was whether the child had acquired habitual residence in Singapore or retained habitual residence in England.
The couple made a joint decision to leave England and move to Singapore with their children. At the time of the move in March 2021, the father understood that the move was for an indefinite period of time (albeit he accepted that the move was not necessarily permanent). The mother’s position was that the move was for a trial period only, and that if the move proved to be unsuccessful, that the family would return home.
The court concluded that the parties were both telling the truth about what they thought was agreed, but that there was in fact no clear, concluded agreement about the basis on which the family were moving to Singapore and no clear or concluded agreement that the mother would retain the right to say that the move was not a success and hence that the family should return to live in the UK.
After 15 months of life in Singapore, and escalating problems in the relationship between the parents, the mother unilaterally determined that the move to Singapore had been unsuccessful and fled with one of the party’s two children. The father initiated a summary return application in England.
The primary objective of the 1980 Convention is to restore the status quo by securing the prompt return of a child who has been wrongfully removed from his or her place of habitual residence. A removal or retention of a child is ‘wrongful’ if it is one that is in breach of the rights of custody of the left behind parent under the law of the state in which the child is habitually resident.
If a court finds that such a wrongful removal has occurred, the relevant contracting state is obliged to order the return of the child forthwith unless a period of more than a year has elapsed since the date of the wrongful removal or retention and the child is settled in his or her new environment. In this matter, the obligation on the court was therefore mandatory unless one or more of the following applied: a finding that the father was not exercising legal rights of custody immediately prior to that date; a finding that the child was not habitually resident in Singapore immediately before the child’s removal; or if the mother could establish an exception to summary return (in this case under Art 13(b)) which would displace the mandatory obligation on the court and replace it with a discretion in relation to whether a return should be ordered.
The exceptions contained in Article 13(b) include the following: where the person applying for return consented to or subsequently acquiesced in the child’s removal or retention; where there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; and where the child objects to return and has attained an age and degree of maturity at which it is appropriate to take the child’s views into account.
In this matter, the mother’s primary argument was that the child had never gained habitual residence in Singapore, therefore the child was in fact habitually resident in the jurisdiction of England and Wales prior to the alleged wrongful removal.
If the court agreed with the mother and found that the child was in fact habitually resident in England at the time of the removal from Singapore, the father’s summary return application would fail as there would have been no ‘wrongful’ removal or retention.
In support of her primary argument, the mother emphasised that the move to Singapore was a “trial period” only. She focused on issues relating to her employment opportunities in England versus in Singapore, her immigration status in Singapore, and the difficulties in the relationship between the parties.
The legal teams for both parties agreed that in respect of the exercise of evaluating a child’s habitual residence, the current law in England is summarised in the cases of Re B (A child) (Custody Rights: Habitual Residence) and Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention).
The relevant principles applicable to the determination of a child’s habitual residence can be extracted from both cases, distilled, and merged as follows:
a) The concept of ‘habitual residence’ corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.
b) In addition to the physical presence of the child in a member state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent.
c) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. The factual enquiry must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual residence.
d) The criterion does not require the child's full integration in the environment of the new state but only a degree of it.
e) In certain circumstances the requisite degree of integration can occur quickly.
f) The younger the child, the more their social and family environment will be shared with those on whom the child is dependent, giving increased significance to the degree of integration of that person or persons. However, this is not to eclipse the fact that the investigation is child focused. It is the child's habitual residence, which is in question and, it follows the child's integration which is under consideration.
g) The focus is on the child’s situation with the purposes and intentions of the parents being merely among the relevant factors.
h) There is no requirement that the child should have been resident in the country in question for a particular period of time nor is there any requirement that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.
i) It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there.
j) It would be highly unlikely for a child to have no habitual residence. If interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has a habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former.
k) It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent.
In Re B Hayden J was critical of lawyers who continue to fail properly to address the issue of habitual residence in a child-focused manner:
If there is one clear message emerging both from the European case law and from the Supreme Court, it is that the child is at the centre of the exercise when evaluating his or her habitual residence. This will involve a real and detailed consideration of (inter alia): the child's day to day life and experiences; family environment; interests and hobbies; friends etc and an appreciation of which adults are most important to the child. The approach must always be child driven. I emphasise this because all too frequently and this case is no exception, the statements filed focus predominantly on the adult parties. It is all too common for the court to have to drill deep for information about the child's life and routine. This should have been mined to the surface in the preparation of the case and regarded as the primary objective of the statements. I am bound to say that if the lawyers follow this approach more assiduously, I consider that the very discipline of the preparation is most likely to clarify where the child is habitually resident.
Hayden J directs further comments to solicitors working on cases where the determination of habitual residence is the core issue:
the solicitors charged with preparation of the statements must familiarise themselves with the recent case law which emphasises the scope and ambit of the enquiry when assessing habitual residence; if the statements do not address the salient issues, counsel, if instructed, should bring the failure to do so to his instructing solicitors attention; an application should be made expeditiously to the Court for leave to file an amended statement, even though that will inevitably result in a further statement in response; Lawyers specialising in these international children cases, where the guiding principle is international comity and where the jurisdiction is therefore summary, have become unfamiliar, in my judgement, with the forensic discipline involved in identifying and evaluating the practical realities of children’s lives. They must relearn these skills if they are going to be in a position to apply the law as it is now clarified.
In the Singapore/England case mentioned by the writer in the opening paragraphs, the court concluded that it was not necessary to establish definitively whether these parents had decided to remain in Singapore permanently as an intention to reside permanently there was not a prerequisite for a finding of habitual residence. There was no evidence that the children believed that the move to Singapore was a mere trial period. The court found, based primarily on the father’s evidence, that from the children’s perspectives the move to Singapore had all the appearance of a settled existence: they had started school, they were developing relationships with new friends and the father’s family. The court concluded that the new arrangements quickly became sufficiently stable and settled to qualify as being ‘habitual’. The court ordered the child to be returned to Singapore.
J and R (Habitual Residence) is a recent case with a similar core issue at the heart of the litigation. The parties moved from England to Spain and lived in Spain for 12 months. The mother then fled with the child back to England without the father’s consent, arguing that taking the move to Spain was only ever meant to be temporary and that taking child back to England was merely a return home, and therefore a continuation of her prior habitual residence in England. Mrs Justice Roberts had no difficulty in finding that the child had acquired a sufficient degree of integration into his home, school and social life in Spain to enable her to find that he had acquired habitual residence in that jurisdiction. The court ordered the child to be returned to Spain.
Habitual residence can be acquired very rapidly, and parental intention is just one relatively minor consideration in the overall assessment of habitual residence. A parent who believes that a move abroad was only ever meant to be temporary is unlikely to appreciate that they can quickly lose control over the decision of whether or when the children can be returned “home”. It is therefore critically important that parents considering moving abroad with children should seek specialist legal advice before they move.