S (A Minor), In re

The House of Lords held that the English High Court had jurisdiction under the Family Law Act 1986 (notably ss.1, 2 and 3 and s.7) to make an order giving interim care and control to the father because the child remained habitually resident in England at the relevant date. The court applied the ordinary, factual test of habitual residence and reaffirmed that a young child’s habitual residence does not change automatically or necessarily in the short term when a person without parental rights takes physical custody.

The court further held that the taking of the child to Ireland on 11 March 1996 was not wrongful under Article 3 of the Hague Convention because, at that date, the father had no rights of custody. However, when Wall J. made an interim order on 13 March 1996 giving the father care and control, the father acquired custody rights and the child’s continued retention in Ireland contrary to that English order became wrongful for the purposes of the Hague Convention.

Finally, for the purposes of the European Convention and section 23(2) of the Child Abduction and Custody Act 1985, the court held that the retention following the English interim order rendered the prior removal unlawful and empowered the English court to declare the removal unlawful under Article 12 and s.23(2).

Background and parties:

• The child E. was born in January 1995 to an Irish mother and Moroccan father who were unmarried. The mother had been living in England but moved between England and Ireland in 1995 and early 1996. The mother died in hospital in London on 10 March 1996. On 11 March 1996 the maternal grandmother and aunt took E. to Ireland where he remained.
• Procedural posture: proceedings were brought in both Ireland and England. The Dublin Circuit Court made an ex parte order on 13 March 1996 granting guardianship and care to the aunt. On the same day the English High Court (Wall J.) made an interim order giving care and control to the father and ordered E. to return to the jurisdiction; originating wardship proceedings were issued in England.

Nature of the applications and issues:

• The appeal to the House of Lords raised three principal issues: (i) whether the English High Court had jurisdiction under the Family Law Act 1986 to make the interim care and control order (habitual residence and wardship jurisdiction); (ii) whether the taking of E. to Ireland on 11 March and his remaining there amounted to wrongful removal or retention under Article 3 of the Hague Convention (as implemented by the Child Abduction and Custody Act 1985); and (iii) whether the events constituted an unlawful removal for the purposes of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children (and s.23 of the 1985 Act).

Court’s reasoning and conclusions:

• Habitual residence and jurisdiction: the judges accepted the trial judge’s and Court of Appeal’s concurrent factual finding that the mother (and therefore E.) was habitually resident in England at her death and that two days’ presence in Ireland with relatives who had no parental rights was insufficient to change the child’s habitual residence. Consequently Wall J. had jurisdiction to make the interim care and control order and to continue wardship proceedings.
• Hague Convention (Article 3): the taking to Ireland on 11 March was not wrongful because the father had no custody rights then. However, once Wall J. made the English interim order on 13 March 1996 giving the father care and control, the father acquired custody rights and the child’s continued retention in Ireland contrary to that order became wrongful within Article 3. The court emphasised the distinction between removal and retention and the need to identify the date on which wrongful retention arose.
• European Convention and s.23(2): the court held that for the purposes of Article 12 of the European Convention and section 23(2) the retention after the English order rendered the removal unlawful and authorised the English court to declare the removal unlawful, because the child had been kept out of the United Kingdom without the consent of the person who had the right to determine his residence (the father, from the date of the English order).
• Other findings: the court held that a non-parent carer exercising powers under section 3(5) of the Children Act 1989 does not include power to change a child’s habitual residence merely by taking the child out of the jurisdiction. The court also accepted that the parens patriae jurisdiction is available to protect any child habitually resident in England, regardless of nationality.

Appeal dismissed. The House of Lords upheld the Court of Appeal: (1) the child remained habitually resident in England and the English court had jurisdiction to make the interim care and control order; (2) the removal on 11 March was not wrongful because the father had no custody rights then, but the retention after Wall J.'s interim order of 13 March was wrongful under the Hague Convention; and (3) for the purposes of the European Convention and section 23(2) of the Child Abduction and Custody Act 1985 the retention following the English order rendered the removal unlawful and the English court could declare the removal unlawful.

At first instance the trial judge (Mr Lionel Swift Q.C.) conducted an eight-day hearing and found that the mother and child were habitually resident in England at her death and that the child did not acquire a new habitual residence in Ireland during the short period in which he was taken there. The Court of Appeal (Butler-Sloss L.J. et al.) agreed with those findings and held the child's retention wrongful under the Hague Convention and the removal unlawful for the purposes of the European Convention and section 23(2). The appeal to the House of Lords was dismissed ([1997] UKHL 32).