Changing a child’s habitual residence - the importance of stability

Posted: 02/03/2015

The recent case of MB v SB concerned establishing whether the habitual residence of a child was Israel or the UK. 

The child was born in London in 2006 to a father who was Jewish and a mother who was a Jewish convert. In 2009 the parents divorced and both enjoyed (or endured) short lived marriages to others.  In April 2010 a consent order was agreed in which it was stated that the child was habitually resident in England.

The father moved to Israel permanently in 2013 and despite the fact that they were divorced, the mother followed him with the child later that year. The mother clearly viewed the move as a temporary trial period but the father wanted it to become a permanent arrangement. Neither the mother nor the daughter felt at home in Israel. Neither spoke Hebrew nor had any friends there and both were unhappy. The mother found the father to be hostile and unhelpful in addressing their concerns. In December she decided to return to England with the child.

This resulted in the father making an application under the Hague Convention for the child’s return to Israel, arguing that was where the child was habitually resident. The mother argued that the child remained habitually resident in England and Wales. The judge agreed with the mother and decided that the child should not be returned to Israel. The court had no doubt that the mother wanted the child to be happy and to settle in Israel but the father had not helped that to happen. The court found that the child's primary attachment was to the mother and that the mother's unhappiness had adversely impacted on the child.

The court found that the mother did not leave the UK with the intention of emigrating and that the father was aware of this. She had kept her options open by retaining her English home, doctor, and belongings and spoke of the move in provisional terms. Ultimately, the mother’s unhappiness, and the father’s failure to cooperate with the mother’s attempts to support the child, had prevented the daughter achieving ‘that sufficient degree of stability to amount to a change in residence’.

Dickon Ceadel, associate in Penningtons Manches’ family law team, commented: “This is a key case highlighting the degree to which a family needs to be settled in a country for a child to be considered to be habitually resident there. If a connection is retained with the previous home and there is not clear evidence that a permanent move has taken place, it is unlikely a child’s habitual residence will have shifted.”

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