In the matter of A (Children) (AP)

An inherent-jurisdiction order requiring a child’s return is not necessarily a Part I order under the Family Law Act 1986, although wardship and return orders concern parental responsibility within Council Regulation (EC) No 2201/2003. Where no Member State has jurisdiction under articles 8 to 13, article 14 preserves jurisdiction available under domestic law.

The High Court retains a protective, nationality-based jurisdiction over a British child abroad. It must exercise that jurisdiction with extreme circumspection and after a case-specific assessment of forum, practical justice, coercion, family connections and the child’s circumstances.

A child’s habitual residence depends on factual integration in a social and family environment. The inquiry is child-centred and should not be overlaid with legal rules derived from domicile or ordinary residence. The Court left unresolved whether prior physical presence is indispensable.

The mother and three older children were habitually resident in England. During a visit to Pakistan, the mother was coerced into remaining there. Her fourth child, Haroon, was born in Pakistan and had never entered England. The mother eventually escaped without the children and obtained wardship and return orders in England.

Parker J held that all four children were habitually resident in England and Wales: [2012] EWHC 663 (Fam). The Court of Appeal upheld the decision concerning the three older children but, by a majority, held that Haroon could not acquire habitual residence without physical presence: [2012] EWCA Civ 1396; [2013] EWCA Civ 232.

The central questions were whether habitual residence required previous physical presence and whether Haroon’s British nationality supplied an alternative basis for the High Court’s inherent jurisdiction.

1. Disposition. The appeal was allowed unanimously and the case remitted urgently to Parker J. She was to determine whether the High Court should exercise its inherent jurisdiction over Haroon on the basis of his British nationality. The parties had liberty to seek a reference to the Court of Justice if determination of habitual residence later became necessary.

2. Statutory and regulatory classification. Lady Hale, with whom Lord Wilson, Lord Reed and Lord Toulson agreed, held that the return and wardship orders were not Part I orders within section 1(1)(a) or (d) of the Family Law Act 1986. The jurisdictional prohibitions in section 2 therefore did not apply. The orders nevertheless concerned parental responsibility and guardianship, and consequently fell within Council Regulation (EC) No 2201/2003.

3. Third-country cases. The Regulation’s jurisdictional scheme applies even where the competing jurisdiction is a non-Member State. If England and Wales had no jurisdiction under article 8 and no other Member State had jurisdiction under articles 8 to 13, article 14 directed attention to English domestic law. The Court did not decide whether a court possessing jurisdiction under the Regulation must exercise it despite a more appropriate non-Member-State forum.

4. Nationality-based jurisdiction. The High Court’s protective, parens patriae jurisdiction over a British child exists wherever the child is situated, unless removed by statute. Its exercise where the child is neither present nor habitually resident here requires extreme circumspection. Relevant considerations included the position of the siblings, comparative suitability and practicality of the competing forums, the mother’s ability to litigate in Pakistan, the coercion already found, the need for current information about the children and the father’s procedural conduct. The judge was not to permit decided matters to be reopened.

5. Habitual residence. The governing inquiry is factual and child-centred. Habitual residence is the place reflecting some degree of the child’s integration in a social and family environment, assessed from all the circumstances. For an infant, the integration of those upon whom the child depends is particularly important. The settled-purpose test derived from R v Barnet London Borough Council, ex p Shah [1983] 2 AC 309 should be abandoned for children.

   The majority considered previous physical presence the more persuasive prerequisite but held that the point was not acte clair and did not decide it. Lord Hughes agreed in the order but considered that an infant could share the habitual residence of an established family unit without ever having been physically present there, particularly where presence had been prevented by coercion or other force majeure.

1. United Kingdom Supreme Court: The appeal was allowed. The question whether to exercise nationality-based inherent jurisdiction was remitted urgently to Parker J, with liberty to seek a reference to the Court of Justice if habitual residence became determinative: [2013] UKSC 60.

2. Court of Appeal: The father’s appeal concerning the three older children was dismissed unanimously. His appeal concerning Haroon was allowed by a majority because the child had never been physically present in England and Wales: [2012] EWCA Civ 1396. A supplemental judgment was delivered when the order was made: [2013] EWCA Civ 232.

3. High Court: Parker J held that the three older children had retained their habitual residence in England and that Haroon shared the habitual residence of his mother. The wardship, return and freezing orders were continued: [2012] EWHC 663 (Fam).