I (Habitual Residence), Re

Habitual residence is a question of fact requiring an overall assessment of all relevant circumstances. Events, feelings, relationships, intentions and legal rights may all be relevant, and no category of fact automatically prevails. A child’s habitual residence does not necessarily follow that of a parent who holds parental responsibility, particularly where the child has lived for a substantial period with other primary carers. A parent’s unilateral or covert removal of the child does not automatically end the child’s habitual residence where the child’s established social and family ties remain in the former country. The court must assess the child’s integration and the proximity of the relevant social and family environment.

M was born in England and lived in Nigeria during infancy. In 2007 his parents placed him in the care of his maternal uncle and aunt in England, where he remained for five years and attended school. The parents retained parental responsibility but had limited involvement in his day-to-day life.

In September 2012 the mother covertly removed M from England and took him to Nigeria. The uncle and aunt promptly began proceedings for residence and prohibited steps orders. Mrs Justice Baron subsequently found that M was habitually resident in England and Wales, made him a ward of court and directed his return. The issue before Mr Justice Peter Jackson was whether the court had jurisdiction when the proceedings were issued.

1. Jurisdiction and governing approach. The court had to determine M’s habitual residence on 6 September 2012 under article 8 of Council Regulation (EC) No 2201/2003 and the Family Law Act 1986. Habitual residence is a question of fact requiring an assessment of all the circumstances. The assessment may include events, feelings, relationships, intentions and legal rights and wrongs. No category of fact has automatic precedence.
2. Parental responsibility and habitual residence. The principle stated in J (A Minor) (Abduction: Custody Rights) sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442 did not mean that a child’s habitual residence necessarily follows the parent who alone holds parental responsibility. As explained in Re M (Minors) (Residence Order: Jurisdiction) [1993] 1 FLR 495, the relevant consideration is ordinarily the parent’s physical care and the factual element of volition.
3. Integration and proximity. Under Mercredi-v-Chaffe [2011] 1 FLR 1293 (CJEU), habitual residence reflects some degree of integration into a child’s social and family environment. The criterion of proximity concerns closeness in a broad sense, not merely geographical distance.
4. Application. M had lived a settled life in England for five years. His primary family relationships, school and activities were there, and the uncle and aunt had assumed day-to-day responsibility. The parents’ retained parental responsibility and their decision to remove him carried weight, but did not give them an automatic power to change his habitual residence by an exercise of will. The case was factually distinguishable from Re M (Minors) (Residence Order: Jurisdiction), which concerned a shorter-term placement.
5. Order. M was habitually resident in England and Wales when proceedings were issued, so the court had jurisdiction. The judgment determined jurisdiction only; the future exercise of the court’s powers and any further orders were reserved.

The judgment records that the proceedings began in the County Court and were transferred to the High Court on 27 September 2012. On 30 October 2012 Mrs Justice Baron found that M was habitually resident in England and Wales, made him a ward of court and directed his return. The present judgment confirmed jurisdiction and left further orders for later determination.