Al Habtoor v Fotheringham

Habitual residence is a question of fact. The loss of an existing habitual residence and the acquisition of a new one are distinct questions. A family may lose its former habitual residence immediately on leaving with a settled intention to live elsewhere, although the acquisition of a new habitual residence requires an appreciable period of residence, which may be brief.

A child’s habitual residence does not automatically change with the intention or habitual residence of a parent. A child who remains physically resident abroad cannot acquire habitual residence in England and Wales without returning there. Where the Family Law Act 1986 denies jurisdiction, wardship cannot be used to obtain substantially the same relief through an inherent jurisdiction founded only on nationality.

The mother, her husband and their children moved from England to Dubai in September 1999 under arrangements made with the child’s natural father and paternal family. Following a dispute in December, the father retained the child in Dubai and obtained local custody proceedings. The mother and her husband returned to England, but the child remained in Dubai. They later entered a compromise which was embodied in a Dubai court order.

The mother began wardship proceedings in England on 10 February 2000. Bracewell J held that the child remained habitually resident in England and Wales, declared his retention in Dubai unlawful, and ordered his return. The father appealed. The central issue was whether the English court had jurisdiction on the application date.

1. Appeal allowed unanimously. Thorpe LJ, with whom Laws LJ and Penry-Davey J agreed, held that the High Court lacked jurisdiction on 10 February 2000. Bracewell J had framed the habitual-residence question incorrectly by treating England and Dubai as the only alternatives. The child could instead have been habitually resident in neither jurisdiction.
2. The family had surrendered its English habitual residence when it left on 5 September 1999. The contemporaneous evidence showed a settled purpose to relocate: the change of name, preparations to let or sell the English home, shipment of most possessions, residence permits, employment, schooling and arrangements to acquire a home in Dubai. Later disappointment was relevant principally to whether a Dubai habitual residence had been acquired, not to the prior loss of English habitual residence.
3. The family had also acquired habitual residence in Dubai before the December breakdown. The governing question was whether residence was for a settled purpose, not whether the family had put down substantial roots or intended an indefinite stay. A move undertaken on a trial or time-limited basis can satisfy that test.
4. The mother’s and stepfather’s return to England did not restore the child’s English habitual residence. Although a young child will normally share the habitual residence of the parent providing physical care, habitual residence remains factual. The child had remained physically resident in Dubai and could not acquire residence in England and Wales without returning there.
5. The court also rejected reliance on inherent wardship jurisdiction. It would be inappropriate to evade the statutory jurisdictional restriction by making a declaration based solely on British nationality, particularly where the child was abroad and a foreign court had made a consent order. Comity required great caution before making an unenforceable order conflicting with that order. The appeal and related applications were allowed; the costs order below was set aside.

• Court of Appeal (Civil Division): Allowed the father’s appeal and held that the High Court lacked jurisdiction to make the wardship orders.
• High Court, Family Division (Bracewell J): Held on 15 September 2000 that the child was habitually resident in England and Wales, declared that he was unlawfully retained in Dubai, and ordered his return.