KKO:2025:102 – Child’s place of habitual residence and return of a child under the Hague Convention

Record number: S1/2025/984
Issued on 4 December 2025
ECLI:FI:KKO:2025:102

Background and questions before the Supreme Court

The parties’ child had been born in Australia in 2023 and lived with their parents there. In early June 2025, the parents signed an agreement according to which they and the child would move to China via Finland, moving from Australia to Finland in early June 2025 and then to China in October 2025. According to the terms of the agreement, the father was not allowed to separate the child from the mother or to take the child away from the family’s shared apartment overnight without the mother’s consent.

On 5 June 2025, the parents travelled to Finland with the child in accordance with the agreement. On 19 June 2025, the father was directed by child welfare services to go to a shelter with the child, and the mother had not met the child since then.

According to the mother, the father had wrongfully retained the child on 19 June 2025. The mother had considered that the father had violated the agreement between the parents and that her consent to the child moving to Finland had thus been withdrawn. According to the mother, the child’s country of habitual residence at the time of retaining was Australia.

The father of the child opposed the application and argued that Australia was no longer the child’s country of habitual residence. According to the father, the parents had moved away from Australia with their child by mutual agreement.

The Court of Appeal had accepted the application of the child’s mother and ordered the child to be returned to Australia.

The question to be resolved in the Supreme Court was primarily whether Australia had been the child’s country of habitual residence immediately before the alleged wrongful retaining on 19 June 2025.

Criteria for determining the place of residence of a child

The return of the child had been requested on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the Hague Convention). According to Article 1 of the Hague Convention, it is an object of the Convention to secure the prompt return of children wrongfully removed to or retained in any Contracting State.

Article 4 provides that the Hague Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Supreme Court noted that the concept of habitual residence is not defined in the Hague Convention. In the agreements drawn up at the Hague Conference, the established meaning of “habitual residence” is the place of residence where a person actually lives and which constitutes their actual primary living environment. The court examining a request for return must determine the habitual residence of the child in each case on the basis of the relevant facts that describe the circumstances of the child.

Section 30 of the Act on Child Custody and Right of Access (Child Custody Act) provides that a child present in Finland and wrongfully removed from the state where he or she is habitually resident, or wrongfully not returned to this state, shall be ordered to be returned at once, if the child immediately before the wrongful removal or retention was habitually resident in a state which is a Contracting State to the Hague Convention. Pursuant to section 32, subsection 1 of the Act, the removal or retention of a child is deemed wrongful if it is in breach of rights of custody. According to the legislative materials for the Act, a child’s place of habitual residence is determined on the basis of factual circumstances rather than family relationships. In determining the place of residence, the main considerations are the length and continuity of residence and other similar facts of personal life which indicate the existence of a substantial connection with the state of residence. (HE 60/1993 vp pp. 16–17.)

The Supreme Court considered that, although European Union law was not applicable to the matter, interpretations derived from Union law with regard to the definition of a child’s place of habitual residence could be used also when applying the Hague Convention.

Assessment by the Supreme Court in this case

The Supreme Court found that the child’s state of habitual residence had been Australia before the family travelled to Finland in June 2025. The child had spent approximately two weeks in Finland before the alleged date of wrongful retaining. At the time, the child was approximately one year and nine months old. From the time of the child’s birth until June 2025, the child’s living environment had mainly consisted of their parents, home and day care centre in Australia.

However, in view of the parents’ common intention to permanently leave Australia and the steps taken to that effect, the Supreme Court held that the child’s place of habitual residence immediately before the alleged wrongful retaining was no longer Australia. On the other hand, the child’s place of residence could not be considered to have moved to Finland at the time of the alleged wrongful retaining, taking into account the short duration and intended temporary nature of the stay in Finland. In these circumstances, the fact that the father had failed to return the child to the parents’ shared home in Helsinki after going to a shelter with the child did not constitute removal of the child from their state of habitual residence or a failure to return the child there. Therefore, there were no grounds for ordering the child to be returned to Australia, to which the child’s actual ties had been broken.

The decision of the Court of Appeal was overturned and the application for the return of the child was rejected.