ZA & Anor v NA

Habitual residence is primarily a question of fact, but residence requires physical presence. A child born abroad who has never entered the jurisdiction cannot acquire habitual residence there solely because a parent is habitually resident there. A newborn may acquire the parent’s status after presence in the jurisdiction, subject to all the circumstances, but no special legal presumption applies. Wrongful retention abroad by one parent, without consent or acquiescence, does not change the habitual residence of children already resident in England. Under Brussels II Revised, the inquiry remains fact-sensitive and considers integration in social and family life, with particular regard to the child’s age and circumstances.

After the mother escaped Pakistan, the High Court made wardship return orders for four children, finding them habitually resident in England and Wales. The father and paternal uncle appealed Parker J’s order of 20 February 2012, challenging habitual residence, comity, the Pakistan Protocol and Brussels II Revised.

The three older children had lived in England before being retained in Pakistan. H was born in Pakistan and had never been in England. The appeal raised whether H could be habitually resident in England from birth through his mother’s status, and whether the orders concerning the older children should be displaced.

The appeal was allowed to the extent concerning H. The majority comprised Patten LJ and Rimer LJ. Thorpe LJ dissented on H and would have dismissed the appeal.

1. The older children. Their habitual residence remained in England and Wales. They had been born and brought up there, and their intended trip to Pakistan was temporary. Their continued presence in Pakistan resulted from the father’s coercion and was neither agreed to nor acquiesced in by the mother. A parent cannot unilaterally change a child’s habitual residence by wrongful removal or retention. The children’s subsequent involvement in family life and education in Pakistan did not alter that conclusion. The principles in J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 and Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 supported this result.
2. H. Habitual residence is a question of fact, but the concept contains limits derived from ordinary residence. Acquisition of habitual residence requires physical presence in the country concerned. H was born in Pakistan and had never entered England and Wales. He therefore could not have acquired habitual residence there at birth merely through his mother’s habitual residence. The Court of Appeal held that B v H (Habitual Residence: Wardship) [2002] 1 FLR 388 was wrongly decided on this point. The orders of Peter Jackson J and Parker J concerning H were made without jurisdiction and were set aside.
3. European and domestic jurisdictional frameworks. The guidance under Council Regulation (EC) No. 2201/2003 Council Regulation (EC) No. 2201/2003 required a fact-sensitive assessment of the child’s physical presence, permanence and integration in a social and family environment. Re A (Area of Freedom, Security and Justice) [2009] 2 FLR 1 and Mercredi v Chaffe [2011] 1 FLR 1293 did not require a different result. The same conclusion followed under section 2 of the Family Law Act 1986 Family Law Act 1986.
4. Foreign proceedings and further directions. The English court was not required to cede jurisdiction over the older children merely because Pakistani proceedings were earlier in time or a Pakistani custody order existed. The forum conveniens issue had not been argued below and was reserved for written submissions and a supplemental judgment. Permission to appeal and an extension of time were granted, and the appeal was allowed only to the stated extent.

Thorpe LJ agreed that the older children remained habitually resident in England and that the European authorities would not change the result. He differed on H, considering the exceptional reasoning in B v H correct and the case narrowly within the permissible boundary.

• Court of Appeal (Civil Division) — In [2012] EWCA Civ 1396, the majority allowed the appeal concerning H and set aside the orders relating to him. The position of the older children was upheld, subject to the reserved forum conveniens issue.
• High Court of Justice, Family Division — Peter Jackson J made an immediate return order in wardship. Parker J repeated the return order on 20 February 2012 after hearing the mother’s evidence and finding that all four children were habitually resident in England and Wales.