German children who spent a year in England held on appeal to have acquired habitual residence

The children, aged 6 and 8 at the time of the application, had lived in Germany until July 2018, when they moved to live in England. The mother had been their primary carer since birth. She challenged the finding of the High Court that the children were habitually resident in Germany at the time of their wrongful retention. 

The appeal was heard by Lord Justice Moylan, sitting with Lady Justice Simler and Sir Stephen Richards. 

Continuing connection 

The children’s parents had agreed to allow them to move to England with their mother, who wished to move in with her current partner, whom she later married. The move was envisaged by the parents to be for around 12 months. A letter of intent to this effect was signed by both parties following mediation, which also stated that the children’s home would remain as their original location in Germany. 

The parents did not agree about the amount of time the children spent with the father in Germany after the move, but they spent somewhere between 96 and 111 days in Germany over a 12 month period. In July 2019, around the end of the proposed period, the mother discovered she was pregnant. This led her to decide that she would not return to Germany and instead remain, with the children, in England. The father applied for an order under the Hague Convention for their return to Germany. 

At the High court hearing, the judge found that the mother had retained the children, in breach of the agreement between the parents, at the end of July 2019, and ordered that they be returned to Germany in April 2020. On the issue of habitual residence, he found the children’s continuing connections with Germany to be a significant factor, and also placed weight on the fact that the mother had originally planned to return there before she became pregnant. 

In particular, he said that the continual return trips to Germany had kept their position there alive and therefore they had not lost their connections there, thus becoming unable to acquire another habitual residence. In support of this proposition, he cited a see-saw analogy used by Lord Wilson in a previous case, Re B (2014). Furthermore, he found that a return to Germany would not place the children into an “intolerable situation”. 

The mother submitted that the judge had failed to properly analyse the issue of habitual residence and was wrong to conclude that returning the children to Germany would not place them in an intolerable situation. His understanding of Re B was flawed in that Lord Wilson was not saying that continuing links with the original resident country would prevent a child from acquiring a new habitual residence. 

It was further submitted that the intentions of the parents had been placed above the more important factor of the children’s integration in England. If the judge had asked whether the children had achieved the requisite degree of integration in England to be habitually resident here, he would have inevitably have determined that they had. 

Did not alter the key question 

In his opinion, with which Simler LJ and Sir Stephen Richards agreed, Moylan LJ said of the concept of habitual residence and the see-saw analogy: “Lord Wilson’s analogy and his other observations were directed simply to the expectation that the acquisition of a new habitual residence would be likely to coincide with the loss of the previous habitual residence. He did not intend to alter the key question which, in every case, is: where is the child habitually resident? Even though the acquisition of a new habitual residence can be expected to coincide with the loss of the previous one, hence the see-saw analogy, this issue is not determined by asking simply the question whether a child has lost their habitual residence.” 

He continued: “While Lord Wilson’s see-saw analogy can assist the court when deciding the question of habitual residence, it does not replace the core guidance given in A v A and other cases to the approach which should be taken to the determination of the habitual residence.  This requires an analysis of the child’s situation in and connections with the state or states in which he or she is said to be habitually resident for the purpose of determining in which state he or she has the requisite degree of integration to mean that their residence there is habitual.” 

On the judge’s general approach, he said: “The judge in this case was led to make a different decision to that which a ‘factual enquiry’ would have produced by his focus on the question of whether the children had lost their habitual residence in Germany.  It does not matter what led the judge to take this path but it seems likely that it was, what appears to have been, his understanding of some of Lord Wilson’s comments in Re B and, in particular, the see-saw analogy.” 

He continued: “The children had moved here with their primary carer in July 2018. They established their home here with her. They intended to stay for ‘12 months or so’. They went to school in England. They ‘settled quickly’ in part because they were familiar with the place to which they had moved and ‘loved’ the local environment.  They spent significantly more of the year up to July 2019 in England than they did in Germany. They clearly became integrated not to ‘some degree’ but to a very substantial degree in a social and family environment in this country. ” 

For these reasons, the appeal was allowed. Moylan LJ concluded: “It is not, therefore, necessary for me to address the other issues raised on behalf of the mother. I would simply say that there is some force in [her] submission that the judge did not sufficiently consider the likely effect on the children of returning to Germany.”