In re S (A Minor) (Custody: Habitual Residence)

A young child does not immediately lose an existing habitual residence merely because a person without parental rights clandestinely removes the child to another country. Habitual residence is a question of fact. A brief period abroad may be insufficient to establish any change.

The High Court’s protective jurisdiction over a child habitually resident in England and Wales extends to an alien child who is abroad. Habitual residence, rather than citizenship or allegiance, determines jurisdiction.

Under the Hague Convention, an initially lawful removal or retention may become a wrongful retention on a specific later date. This may occur when a person acquires rights of custody by judicial order and the child is then kept abroad contrary to those rights. Under the European Convention, continued failure to return the child may also permit the original removal to be declared unlawful.

Following the death of his unmarried mother, the infant E was taken from England to Ireland by his maternal grandmother and aunt. They had no parental rights over him. The Dublin Circuit Court subsequently granted the aunt guardianship and care and control, while the English High Court granted interim care and control to the father, ordered E’s return and continued wardship proceedings.

The trial judge found that E remained habitually resident in England and that the High Court had jurisdiction. He rejected the father’s claims under the Hague and European Conventions. The Court of Appeal upheld the finding on habitual residence but held that E had subsequently been wrongfully retained under the Hague Convention and had been unlawfully removed for the purposes of the European Convention.

The appeal concerned the High Court’s jurisdiction, the existence of a wrongful retention under the Hague Convention, and the power to declare the removal unlawful under the European Convention and section 23(2) of the Child Abduction and Custody Act 1985.

1. Appeal dismissed unanimously. Lord Slynn of Hadley delivered the substantive speech. Lord Goff of Chieveley, Lord Nolan, Lord Nicholls of Birkenhead and Lord Hutton agreed with his reasons.

2. Per Lord Slynn, E remained habitually resident in England when the High Court acted. Habitual residence was a question of fact. His mother’s death did not immediately extinguish the residence which he had acquired through her. Nor did two days in Ireland following a clandestine removal by relatives without parental rights cause the existing residence to be lost or a new one to be acquired. The concurrent findings below disclosed no basis for intervention.

3. Section 3(5) of the Children Act 1989 did not empower a person caring for a child without parental responsibility to change the child’s habitual residence merely by taking the child abroad. The earlier Dublin order also did not alter E’s habitual residence or deprive the English court of jurisdiction.

4. The protective jurisdiction was not confined to stateless children. It extended to an alien child habitually resident in England even though the child was abroad when proceedings began. Habitual residence, rather than allegiance or citizenship, determined jurisdiction. In re P (GE) (An Infant) [1975] Ch 568 was not confined to its stateless facts, and In re B-M (Wardship: Jurisdiction) [1993] 1 FLR 979 was approved.

5. The removal on 11 March was not wrongful under article 3 of the Hague Convention because the father then had no rights of custody. Removal and retention were separate events, but both could arise at different times concerning the same child. A lawful retention could become wrongful on a specific later date. When the English order gave the father care and control and required E’s return, he acquired rights of custody under articles 3 and 5. Keeping E in Ireland contrary to those rights therefore became wrongful, at the latest upon service of the order.

6. Under articles 1(d) and 12 of the European Convention, a failure to return a child after an initially lawful departure could cause the removal to be treated retrospectively as improper. Section 23(2) of the Child Abduction and Custody Act 1985 was satisfied because the father was interested in the matter, E remained habitually resident in England, the father acquired the right to determine his residence, and E was thereafter kept abroad without his consent. The House declared the retention wrongful under the Hague Convention and the removal unlawful for the purposes of the European Convention.

1. House of Lords: Dismissed the appeal unanimously. It upheld the Court of Appeal’s conclusions that E remained habitually resident in England, was wrongfully retained under the Hague Convention, and had been unlawfully removed for the purposes of section 23(2) of the Child Abduction and Custody Act 1985.
2. Court of Appeal: Upheld the finding that E remained habitually resident in England. Reversing the trial judge on the Convention issues, it held that the retention was wrongful under article 3 of the Hague Convention and that the removal was unlawful under article 12 of the European Convention.
3. High Court: Mr Lionel Swift QC held that E remained habitually resident in England and that the High Court had jurisdiction. He held that neither Convention had been breached.