J (Habitual Residence), Re

Habitual residence is a question of fact requiring an assessment of all the circumstances. Events, relationships, intentions, feelings, and legal rights and wrongs may all be relevant. No category of fact automatically prevails unless a specific legal rule requires it.

A child’s habitual residence may sometimes survive an unlawful removal, particularly where the absence is brief and contrived. Conversely, a technically lawful removal does not necessarily determine the child’s habitual residence where the removing adult has no real relationship with the child. The child’s individuality, established relationships, and social and family integration must be considered.

The father applied for orders concerning his seven-and-a-half-year-old daughter, including parental responsibility, inherent-jurisdiction orders, and a declaration of parentage. The child had lived in England from birth with her maternal grandparents, who held a residence order. They secretly took her to the United States intending to emigrate, shortly before the father issued proceedings.

The grandparents and mother challenged the court’s jurisdiction. The central issue was whether the child had ceased to be habitually resident in England and Wales by the date on which the proceedings were issued. The court also considered whether the removal complied with section 13 of the Children Act 1989.

1. The court had jurisdiction. The child remained habitually resident in England and Wales when the proceedings were issued, and the court therefore had jurisdiction to make the orders sought.

2. Habitual residence is determined as a question of fact by surveying all the circumstances. The assessment may include events, feelings, relationships, intentions, and legal rights and wrongs. Lawfulness is one relevant fact, but it does not automatically determine the result. This approach was derived from J (A Minor) (Abduction: Custody Rights) sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442 and Mercredi-v-Chaffe [2011] 1 FLR 1293 (CJEU).

3. The child’s social and family integration, actual relationships, and individual circumstances were particularly important. The grandmother’s parental responsibility did not mean that her will alone determined the child’s habitual residence. The child’s relationship with her father and paternal grandmother, as well as the child’s own experience of the removal, had to be considered. The court attached greater weight to the reality of the child’s situation than to legal technicalities.

4. Section 13 of the Children Act 1989 required written consent from every other person with parental responsibility before a permanent removal by a person holding parental responsibility. The consent had to exist at the time of removal and relate clearly and unequivocally to the proposed removal. Later consent could not retrospectively establish compliance.

5. The temporary-removal exception in section 13(2) depended on the remover’s intention at the time of departure. It did not apply where the actual intention was permanent emigration. The grandparents’ covert removal was therefore legally insecure and did not change the child’s habitual residence during the 13-day absence.

The court invited written submissions on the further orders to follow.