X Council v S

Habitual residence is determined as a question of fact by evaluating the child’s circumstances as a whole. A child may lose habitual residence in one day only where the evidence demonstrates a settled intention to leave the former country permanently and establish long-term residence elsewhere. Child-protection arrangements, including voluntary arrangements made under the Children Act 1989, form part of that factual assessment. Parents cannot unilaterally alter a child’s habitual residence where the child is subject to a protective framework imposed by necessity and proceedings are imminently contemplated. The court must also consider the child’s integration in the social and family environment, consistently with the Revised Brussels II Regulation.

K was a very young child who sustained serious and unexplained injuries while living with his parents in England. He was accommodated under section 20 of the Children Act 1989 and cared for by his maternal grandmother under written working agreements restricting the parents’ unsupervised contact.

After the Local Authority indicated that care proceedings would be issued, the grandmother took K to Southern Ireland with the parents’ agreement. Care proceedings were issued shortly afterwards. The parents later contended that K had lost his habitual residence in England and Wales, depriving the English court of jurisdiction. The issue was whether K remained habitually resident in England and Wales when the proceedings were issued.

1. Jurisdiction retained. K remained habitually resident in England and Wales when the care proceedings were issued. The English court therefore had and retained jurisdiction, and orders for his return were properly made.
2. Habitual residence has its ordinary meaning and is a question of fact. The court must assess all relevant evidence concerning the child’s residence and circumstances. The approach is consistent with Re P-J [2009] 2 FLR 1051 and the guidance of the European Court of Justice in Re A (Area of Freedom, Security and Justice) [C-523/07] [2009] 2 FLR 1.
3. A person may lose habitual residence in a single day, but only where there is a settled intention not to return to the former country and a settled intention to take up long-term residence elsewhere. That principle, drawn from Re J, required strong evidence in the present case.
4. The evidence did not establish any settled plan by the parents to leave England and Wales permanently or to establish long-term residence in Southern Ireland. The removal was an act of desperation in a crisis, rather than a settled change of residence. The parents themselves remained in England and were unable to leave because of bail conditions.
5. The child-protection context was material. K was subject to formal working agreements, made under section 20 of the Children Act 1989, which constrained the practical arrangements for his care. Although legally voluntary, those arrangements had been accepted because the alternative was immediate state intervention and foster placement. It was not open to the parents unilaterally to use that protective arrangement to defeat the jurisdiction of the English court.
6. That conclusion also accorded with public policy. Protective arrangements made in partnership with parents should not enable a child to be removed from the protective framework and thereby evade pending care proceedings. The court requested that the Southern Irish authorities deal with any applications swiftly and make orders requiring K’s repatriation.