Court of Appeal clarifies habitual residence test in international child custody dispute

The Court of Appeal's recent decision in F, Re (A Child) (Habitual Residence) has provided significant clarification on the judicial approach to determining habitual residence in international child custody disputes, particularly within the framework of the 1980 Hague Child Abduction Convention.

Case background

The appeal concerned seven-year-old F, originally resident in Colombia, who was brought to England in December 2023 for what was initially agreed to be a temporary family visit. Following the parents' 2018 separation, F had primarily resided with her mother in Colombia. The visit was intended to expose F to English culture and language whilst obtaining a British passport.

However, complications arose when the father unilaterally decided that F would remain in the UK, contrary to their original agreement. This decision prompted proceedings concerning F's habitual residence, which became central to determining the appropriate jurisdiction for custody matters.

High Court decision

In March 2025, Mrs Justice Morgan concluded that F had acquired habitual residence in England following a period of wrongful retention by her father. The judge's analysis focused primarily on F's living arrangements and social integration with her paternal family during her stay in England.

The mother challenged this finding, arguing that crucial considerations regarding F's substantial connections to Colombia had been inadequately addressed. These included F's entire educational history, established social networks, and the fact that she had never previously lived outside Colombia.

Court of Appeal analysis

The Court of Appeal, in its judgement delivered on 16 July 2025, conducted a thorough examination of Justice Morgan's approach. The appeal court determined that the original decision had failed to adequately balance the evidence of F's ties to both jurisdictions.

The judges emphasised that habitual residence determinations require a comprehensive examination of a child's connections with both their previous and current circumstances, rather than focusing disproportionately on immediate living arrangements or parental assertions.

Crucially, the Court of Appeal found that the High Court had erred in dismissing the significance of F's established habitual residence in Colombia. The appeal court stressed that habitual residence assessments must consider the totality of a child's environment, including educational continuity, social relationships, and the genuine intentions of parents regarding residency arrangements.

Legal implications

The Court of Appeal granted the appeal and ordered a reevaluation, concluding that F remained habitually resident in Colombia at the relevant date. This decision reinforces several important principles in international family law.

The ruling emphasises that habitual residence cannot be determined solely by examining current living arrangements or the duration of a child's stay in a particular jurisdiction. Instead, courts must undertake a holistic assessment that properly weighs a child's established connections and the circumstances that brought them to their current location.

The decision also highlights the importance of scrutinising parental intentions and agreements, particularly where one parent subsequently departs from previously agreed arrangements. The Court of Appeal's analysis suggests that unilateral decisions to retain a child cannot, without more, establish habitual residence in the new jurisdiction.

This judgement establishes important precedential guidance for similar international custody disputes, reinforcing the need for detailed judicial evaluation of all relevant factors affecting a child's habitual residence. The decision underscores that stability and integration within familial and social networks remain fundamental considerations in these complex determinations, requiring careful analysis of pre-existing bonds alongside current circumstances.