I (A Child), Re

On applications for permission to appeal in child-jurisdiction proceedings, the Court of Appeal held that it was strongly arguable that children entrusted by persons with parental responsibility to other carers could become habitually resident in the jurisdiction. The court also considered whether those with parental responsibility could summarily remove the children and thereby determine or alter their habitual residence. The interaction between factual habitual residence, parental responsibility and the European concept of integration in a social and family environment raised an important issue for appellate determination. Permission was granted, but the substantive jurisdiction question was not decided.

Two linked applications concerned children placed by persons with parental responsibility in the care of relatives. In J, an unmarried mother placed the children with their grandparents, who obtained residence orders; the father lacked parental responsibility before the children were removed to America. In I, married parents resident in Nigeria placed a child, and briefly a second child, with an uncle and aunt in England before returning them to Nigeria.

The applications challenged orders made in the Family Division. The central issue was whether the children had become habitually resident in England and whether those with parental responsibility could remove them summarily. Ward LJ had to decide whether permission should be granted and whether the return orders should be stayed.

1. Permission granted. The applications raised a linked and important question of jurisdiction. It was strongly arguable that children placed by those with parental responsibility in the care of others could establish habitual residence in the jurisdiction through their ordinary lives with those carers.
2. The court identified a possible tension between the factual approach to habitual residence and the significance of parental responsibility. In Re M (Minors) (Residence Order: Jurisdiction) [1993] 1 FLR 495, Balcombe LJ's judgment was said, on one view, to disclose such a conflict with Lord Brandon's analysis in Re J (A Minor) (Abduction: Custody Rights) [1992] AC 562. Habitual residence was described as primarily a question of fact determined by all the circumstances, while the element of volition for a young child would usually be that of the person or persons with parental responsibility.
3. The court also considered the European approach described in Mercredi v Chaffe, Case No C-497/10, reported at [2011] 1 FLR 1293. That approach focused on the child's integration into a social and family environment and appeared to give rights of custody less importance. The interaction between that approach and domestic parental-responsibility principles made the issue particularly suitable for determination by the Court of Appeal.
4. Permission was granted in both matters. The applications were linked and directed to be heard together. The return orders in both cases were stayed pending the appeals. The appeal was directed to be heard by three Lord Justices, including a High Court judge.

• Family Division. The applications arose from orders made in proceedings before Peter Jackson J. The judgment records that, in I, Baron J ordered the parents to return the children to the jurisdiction on 30 October 2012. In J, HHJ Rumbelow made return orders on 9 August 2012 and requested the co-operation of the American authorities.
• Court of Appeal (Civil Division). Ward LJ granted permission to appeal in both linked matters, stayed the specified return provisions and directed a three-Lord-Justice constitution including a High Court judge. The substantive jurisdiction issue remained to be decided on the appeals.