A and D (Children), Re

Habitual residence is a question of fact assessed on the whole history at the relevant date. An agreed removal abroad for an open-ended family arrangement does not prevent habitual residence changing as circumstances and parental conduct develop. No precise date of change need be identified. Where both parents have parental responsibility, one cannot unilaterally change habitual residence without the other’s agreement or acquiescence. Where the Family Law Act 1986 may operate alongside the Council Regulation (EC) No 2201/2003, the Regulation’s jurisdictional provisions must be considered first. Acceptance under Article 12.3 must be unequivocal. The appeal was dismissed.

The parties were the mother and father of twins born in October 2007. The paternal grandmother took them from England to Cameroon in November 2008. In wardship proceedings issued in April 2010, the President found that the mother had agreed to the move, that the arrangement was open-ended, and that the twins had acquired habitual residence in Cameroon. He dismissed the originating summons and refused permission to appeal: [2010] EWHC 1113 (Fam).

The mother appealed against the factual findings and raised a new argument that the English court had jurisdiction under Article 12 of the Council Regulation. The central issues were whether the findings on consent, the terms of the arrangement and habitual residence were open to the President, and whether the English court had jurisdiction or should exercise discretion despite the twins living in Cameroon.

1. Disposition. The Court of Appeal, in the judgment of Munby LJ with which Coleridge J and Wilson LJ agreed, dismissed the appeal.
2. Habitual residence and factual findings. Habitual residence is essentially a question of fact. A first-instance judge who has heard the parties’ oral evidence has a special advantage in assessing it. The President was entitled to reject the mother’s account and find that she agreed to the twins’ removal. The principle stated in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, that one parent cannot unilaterally change a child’s habitual residence where both parents have parental responsibility, was correctly applied.
3. The President was also entitled to find that there was no fixed return date and that the arrangement was open-ended. References to a return in February 2009 did not compel a finding of a binding agreement to that effect. The court had to assess the whole history, including events after February 2009 and the parties’ subsequent conduct. Loss of one habitual residence and acquisition of another may result from a process operating over time, so it is unnecessary to identify a precise date of change. On the findings made, the conclusion that the twins had acquired habitual residence in Cameroon by April 2010 was open to the President.
4. Discretion. The President’s alternative refusal to order return would not have justified appellate intervention. Any error concerning contact between the mother and the twins was immaterial. The brevity of the reasons was understandable because the issue arose only on an alternative assumption. The approach was consistent with the restraint identified in Piglowska v Piglowski [1999] 1 WLR 1360.
5. Jurisdiction under the Regulation. The new jurisdiction point could be raised on appeal because it concerned jurisdiction, following Norwich Corporation v Norwich Electric Tramways Company Limited [1906] KB 119. The correct statutory approach under the Family Law Act 1986 was first to ask whether the Council Regulation (EC) No 2201/2003 applied, and only then to consider the domestic habitual-residence or presence grounds.
6. The court’s discussion of the Regulation was alternative and therefore unnecessary to the result. Article 12 is not confined to disputes involving Member States. Article 12.3 requires a substantial connection, unequivocal acceptance of jurisdiction by all parties at the time the court is seised, and jurisdiction in the child’s best interests. The substantial-connection requirement was met, but the father had not unequivocally accepted jurisdiction. Lack of objection and submissions addressing the merits were insufficient where the central debate concerned jurisdiction. Article 12.4 creates a rebuttable presumption, not an irrebuttable one. The appeal nevertheless failed on the habitual-residence issue.

1. Court of Appeal (Civil Division): Permission to appeal was granted. Permission to rely on some fresh evidence was granted and other fresh evidence was refused. The appeal was dismissed.
2. High Court of Justice, Family Division: The President found that the twins were habitually resident in Cameroon, held that the English court lacked jurisdiction, dismissed the originating summons and refused permission to appeal: [2010] EWHC 1113 (Fam).