London Borough of Greenwich v S & Ors

For a child in care, habitual residence does not necessarily change when the child is placed overseas with a relative. The court must consider who has authority to determine the child’s residence, whether there is a settled intention to establish a long-term home abroad, and whether the child has spent an appreciable period there. Where the placement remains dependent on the local authority and the court, and no final plan has been established, the child may retain habitual residence in England despite substantial time abroad. Passage of time alone is insufficient, particularly where unresolved practical or legal problems affect the placement.

The local authority sought a declaration concerning the habitual residence of four children in its care. The children had lived with their maternal great-aunt in Canada since March 2006, subject to two visits to England. The proposed future arrangement was a Convention adoption in England, which required the children to be habitually resident in the British Islands when the relevant agreement was made.

The issue was whether the children had lost their habitual residence in England and acquired a new habitual residence in Canada through their placement with the aunt.

1. The children remained habitually resident in England. The court made a declaration as to their present habitual residence and indicated that, in the absence of exceptional factors, it would probably make a similar declaration when the adoption matter returned.
2. Under Children Act 1989, the statutory disregard for residence while a child is accommodated by a local authority ends when the child is placed with a relative under the authority’s arrangements. The children had therefore been habitually resident in England while in foster care, but the effect of the subsequent placement had to be considered separately.
3. The governing principles were drawn from Re J (A Minor) (Abduction: Custody Rights) 2 AC 578. A person may cease to be habitually resident in one country in a single day if departure occurs with a settled intention not to return. Acquisition of habitual residence elsewhere requires an appreciable period and a settled intention. In the case of a child, the relevant volition will usually be that of the person with parental responsibility.
4. The aunt had no parental responsibility. The local authority determined when the placement began, how long it continued and when it could end. The children were consequently dependent on the local authority, rather than the aunt, for their residence. The placement was described as an extended holiday and reflected only a hope of a future settled home, not a settled intention to establish one.
5. The time spent in Canada did not determine the issue. The unresolved immigration and placement framework meant that the local authority might still require the children’s permanent return. In such circumstances, an overseas placement by a local authority should not result in loss of habitual residence after one or two years without compelling evidence.