Re A (A Child)

Habitual residence is a fact-based question determined in all the circumstances. A child may acquire habitual residence in a foreign country even where the move was temporary or undertaken on a trial basis. The child’s habitual residence is not automatically determined by the habitual residence, nationality or domicile of either parent. Nor can English wardship jurisdiction be founded solely on alleged unlawful removal or retention, or on the child’s nationality or domicile. The court must assess the child’s actual position realistically at the relevant date, including any relevant parental intention or acceptance, while keeping the legal focus on the child’s factual residence.

The applicant sought wardship in respect of her four-year-old son, who had lived in Kurdistan since January 2004. The parties had married in 2001, lived in England, and the child was born there. After the parents’ divorce in Kurdistan in 2004, the child remained with the father’s family under arrangements which the mother said had been obtained under pressure. The mother returned to England in December 2005 and began proceedings in April 2006. The central issue was whether the child was habitually resident in England and Wales or Kurdistan when proceedings began.

1. The application for wardship failed on jurisdiction. At the commencement of proceedings the child was not habitually resident within England and Wales.
2. Habitual residence is an issue of fact to be decided in all the circumstances. The court followed the fact-based approach reaffirmed in Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951, and the principle stated in Akbarali v Brent London Borough Council [1983] 2 AC 309.
3. A child may become habitually resident in a foreign jurisdiction despite a temporary or trial move. The child’s habitual residence does not necessarily follow the mother’s habitual residence, and it cannot revert to England while the child remains physically abroad. The reasoning in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 was consistent with that approach.
4. The court considered the parents’ intentions and the mother’s eventual acceptance of the child’s continued residence in Kurdistan. Those matters supported the conclusion that there had been a common parental position, or at least acceptance, that the child should remain there. They were not, however, determinative: the legal focus remained the child’s factual residence.
5. The mother’s allegations of harassment, threats and pressure justified sympathy and could properly influence the court’s approach. They did not permit the court to establish wardship jurisdiction by declaring the child unlawfully detained abroad. The court distinguished the observation in Re A (Wardship Jurisdiction; Abduction, Habitual Residence) [1995] 1 FLR 767, which concerned unilateral physical removal without the other parent’s consent; this case concerned a consensual removal followed by disagreement about its duration.