Bridgend County Borough Council v GM & Anor

Under Council Regulation EC 2201 of 2003, jurisdiction in parental-responsibility proceedings normally depends on the child’s habitual residence when the court is seised. Habitual residence is a question of fact, assessed by the child’s integration into a social and family environment. A hurried move made to evade care proceedings may fail to establish habitual residence. A child may have no habitual residence. Where habitual residence cannot be established and the child is present in a Member State, jurisdiction may arise under Article 13. The court must be seised while the child is present. A wrongful removal does not require return under the Hague Convention where the child was not habitually resident in the requesting State. The court retains a best-interests discretion to return the child, but should not exercise it where return would not serve the child’s welfare.

Bridgend County Borough Council sought care orders concerning an infant born in Spain to parents who had left Wales shortly before her birth to avoid anticipated care proceedings. The child remained in Spain under Spanish protective arrangements until she was removed by Spanish authorities and brought to Wales. The mother argued that the child was habitually resident in Spain and that the Welsh court lacked jurisdiction. The father, local authority and Guardian supported Welsh jurisdiction.

The court had to determine the child’s habitual residence, whether jurisdiction arose under Council Regulation EC 2201 of 2003, whether the circumstances of the child’s removal required return, and whether the proceedings had been validly issued while the child was present in Wales.

1. Habitual residence. Habitual residence is a question of fact. The relevant inquiry concerns the child’s integration into a social and family environment, taking account of the duration, regularity, conditions and reasons for the stay and the family’s move. The mother’s flight to Spain was a temporary attempt to avoid care proceedings, not a considered relocation. She had no established connections there and abandoned the Spanish address when threatened by Social Services. She was therefore not habitually resident in Spain.
2. A person may have no habitual residence. The court left unresolved whether a baby can acquire habitual residence in a country in which she has never been physically present, observing that any such case would be exceptional. The child had never been habitually resident in Spain merely because she was there with her mother. The court also declined to find that she was habitually resident in Wales.
3. Jurisdiction. Article 13 of Council Regulation EC 2201 of 2003 applied because the child’s habitual residence could not be established and she was present in Wales. Spain no longer had Article 13 jurisdiction once the child had left. The circumstances of removal did not alter that conclusion. Because the child had not been habitually resident in Spain, the Hague Convention did not require automatic return.
4. The court retained a discretion to return the child in her best interests. It declined to do so because the child’s family and investigation were principally connected with Wales, her connection with Spain was tenuous, and a further move would not serve her welfare. The court should also be slow to endorse flight from care proceedings.
5. Proceedings issued one day before the child arrived in Wales were flawed because the child had to be present when the proceedings were issued. The current proceedings were dismissed, with permission for fresh proceedings. Pending that process, the court made an injunction preventing the child’s removal from the local authority’s care, relying on the inherent jurisdiction and sections 100(3) and 100(4) of the Children Act 1989.

First-instance judgment. The judgment records that Mr Justice Hedley had earlier granted permission to invoke the inherent jurisdiction and to apply for a care order, but gives no citation for that order.