DN GN GRN CMN (Children), Re (No. 1)

Jurisdiction in care proceedings under Council Regulation 2201/2003 Brussels II Revised (BIIR) ordinarily lies with the Member State of the child’s habitual residence. Habitual residence is a fact-sensitive question determined from the child’s integration into a social and family environment. Relevant factors include the duration, regularity, conditions and reasons for the stay, schooling, nationality, language, family and social connections, and any settled intention manifested by tangible steps. Temporary or intermittent residence, including a peripatetic life, may not displace an existing habitual residence. A child may have no habitual residence, in which event jurisdiction may arise from presence under Article 13, but that is an exceptional and rare basis. English schooling, housing, health-care arrangements and continuing family integration can outweigh periods spent abroad and arrangements made there.

The local authority commenced care proceedings concerning four children. The parents disputed the English court’s jurisdiction in relation to the three younger children, asserting that they were habitually resident in France when the proceedings were issued on 30 December 2011. The local authority and Children’s Guardian contended that the children remained habitually resident in England and Wales, or alternatively that jurisdiction arose from their presence.

The children had spent periods in France during 2011, where schooling, accommodation and financial support had been arranged. They nevertheless retained substantial connections with England, including housing, schooling and health-care arrangements. The central issue was whether those circumstances had transferred their habitual residence to France.

1. Jurisdiction. Part IV of the Children Act 1989 does not itself provide the jurisdictional basis for public law orders. That basis is supplied by Council Regulation 2201/2003 Brussels II Revised (BIIR). Under Article 8, jurisdiction ordinarily lies with the Member State of the child’s habitual residence.
2. Applicable approach. Habitual residence is a question of fact assessed case by case. The court applied the approach in Mercredi v Chaffe [2011] 1 FLR 1293 and Re A (Area of Freedom, Security and Justice) (C-523 of 2007), considering integration into a social and family environment, schooling, housing, health care, nationality, family and social connections, the reasons and conditions of the move, and the parents’ intentions as shown by tangible steps.
3. The three younger children remained habitually resident in England and Wales. They were integrated into English housing, schooling and health-care systems. Their English school places and housing arrangements remained in place, and they had lived in England for most or all of their lives. They had no established connection with France before the 2011 visits. French accommodation, schooling, nationality and benefits did not, viewed in the wider context, establish a transfer of habitual residence.
4. The evidence did not establish a settled permanent relocation. The children travelled with limited belongings, retained English arrangements, returned to English schooling, and the parents continued to maintain arrangements and claim benefits in England. The court rejected the parents’ accounts where unsupported by corroborative evidence.
5. If habitual residence could not be established, Article 13 could provide a basis founded on presence, but Re A [2009] 2 FLR 1 described that outcome as exceptional and rare. It was unnecessary to rely on that alternative. The court therefore had jurisdiction. The threshold criteria were also established in relation to all four children, including a risk of significant harm to the younger three arising from the parents’ conduct towards DN and their failure to acknowledge responsibility.