ES v AJ & Anor

Habitual residence is a question of fact determined by the ordinary and natural meaning of the words and all the circumstances of the case. A child’s habitual residence will usually follow that of parents living together. Where parents agree to send children abroad under an open-ended family arrangement, the children may acquire habitual residence in the foreign jurisdiction even though an eventual return was contemplated. A parent’s unilateral change of a child’s habitual residence is impermissible, but an agreed arrangement may alter it. Where jurisdiction exists, the court retains a discretion concerning relief, including whether a peremptory return order should be made.

The applicant mother sought the return of her twin children to England and Wales in wardship proceedings. The children had lived in the Cameroons with their paternal grandmother for approximately 18 months after being sent there by agreement between the parents. The mother contended that the removal had been wrongful, or that the children had remained habitually resident in England because their return had been contemplated. The father argued that the children had become habitually resident in the Cameroons and, alternatively, that the court should decline to order their return.

The central issues were whether the children had lost their English habitual residence and acquired habitual residence in the Cameroons, and whether relief should nevertheless be granted.

1. The application was dismissed. The court had no jurisdiction under the Family Law Act 1986 because the twins were neither physically present nor habitually resident in England and Wales.

2. Following Re J (a minor) (abduction: custody rights) [1990] 2 AC 562 at 578–579, habitual residence was a question of fact. The expression was to be given its ordinary and natural meaning by reference to all the circumstances.

3. The parents had agreed that the twins should go to the Cameroons. Their arrangement was open-ended, with no fixed return date, and depended upon the parents’ financial and domestic circumstances. The court rejected the mother’s account that the children had been removed against her opposition.

4. The children’s residence in the Cameroons was not merely temporary in the legal sense. Their uncertain and open-ended family arrangements, together with their continuous residence there for about 18 months, meant that they had acquired habitual residence in the Cameroons. The father had not unilaterally changed their habitual residence.

5. Alternatively, even if the children had remained habitually resident in England and Wales, the court would not have exercised its discretion to make a peremptory return order. The length of the children’s residence abroad and the mother’s delay in pursuing available remedies were material considerations.

6. Any dispute about the twins’ future was therefore to be determined by the courts of the Cameroons.