N v K

Jurisdiction in child matters turns on the child’s habitual residence at the time the court is seised. Habitual residence is a factual inquiry focused on the child’s integration into a social and family environment. Relevant factors include the duration, regularity, conditions and reasons for the stay, schooling, nationality, and social and family connections. The parents’ purposes and intentions are relevant but are not determinative. Where a child has become integrated in England and Wales, the English court may exercise jurisdiction even though another jurisdiction has previously made orders concerning the child.

The mother applied in England for substantive welfare orders concerning the parties’ twelve-year-old daughter. The father had previously issued enforcement proceedings in Florida concerning a 2007 Florida judgment which permitted the child’s temporary relocation to England. The child had remained in England for approximately six years, attending school and living with the mother, stepfather and maternal half-sister.

The Florida court ordered the child’s return and determined that England lacked jurisdiction. The English court was asked to decide whether it had jurisdiction to entertain the mother’s application, and whether the child was habitually resident in England and Wales.

1. Jurisdiction. The court held that jurisdiction was governed by the Family Law Act 1986 and Council Regulation 2201/2003 (BIIR). Under article 8, the courts of a Member State have jurisdiction in parental-responsibility matters where the child is habitually resident there when the court is seised. The same test applies even where the other country is not subject to BIIR, applying Re I (A child) [2009] UKSC 10.
2. Habitual residence. The court adopted the approach summarised by the majority Supreme Court in Re A (Children) [2013] UKSC 60. Habitual residence is a question of fact, not domicile. The relevant inquiry is the degree of the child’s integration into a social and family environment. The court must consider all the circumstances, including the duration and regularity of the stay, the reasons for the move, schooling, nationality, and family and social relationships. Parental purposes and intentions are relevant factors, but the inquiry is focused on the child. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned.
3. The same integration-based approach was reflected in the CJEU decisions in Proceedings brought by A (Case C-523/07) [2010] Fam 42 and Mercredi v Chaffe (Case C-497/10 PPU) [2012] Fam 22.
4. Application and order. The child had lived in England for over six years, attended school there, and had her social, academic and family life there. She was therefore habitually resident in England and Wales, giving the English court jurisdiction to entertain the mother’s application. The judge rejected the Florida court’s determination that England lacked jurisdiction, but declined to declare that England had exclusive jurisdiction without hearing further argument on that issue. The residence order was confirmed, the issue of defined contact was adjourned, and the judgment was sent to the United States Network Judge for transmission to the Florida judge.