R (A Child: Habitual Residence), Re

Habitual residence is a question of fact. The court must assess whether the child has acquired some degree of integration in a social and family environment, or the necessary stability to make the residence habitual. Parental purpose or intention is relevant but only one factor.

The enquiry requires the whole factual nexus, including continuity with the former country, accommodation and schooling, circumstances of arrival and the stability of the stay. Documentary statements must be read in their full context, especially where parties’ litigation positions have changed. Where the first-instance assessment is unreliable, the finding should be overturned and the issue remitted. A consequential return order falls with the overturned habitual-residence finding.

The appellant mother challenged Parker J’s finding that her nine-year-old daughter was habitually resident in England and Wales when the father issued residence proceedings on 23 September 2013. The mother and child had lived in Italy since 2010, but arrived in England on 31 August 2013. The child returned to Italy in October 2013.

Parker J declared that the child was habitually resident in England and Wales and later ordered her return so that a CAFCASS officer could assess welfare issues. The appeal concerned whether the judge had properly evaluated the child’s integration, continuing links with Italy, the parties’ documentary evidence and the short period spent in England.

1. Appeal allowed. The finding that S was habitually resident in England and Wales was overturned. The habitual-residence issue was remitted for rehearing in the Family Division before a different judge.
2. Habitual residence is a question of fact. The applicable test asks whether the child’s residence reflects some degree of integration in a social and family environment, or has acquired the necessary degree of stability to become habitual. The court must consider all relevant factors. The purposes or intentions of the parents are only one factor. The Court adopted the approach stated in A v A (Children: Habitual Residence) [2013] UKSC 60, reported at [2014] AC 1, and Re LC (Abduction: Habitual Residence: State of Mind) [2014] UKSC 1, reported at [2013] 1 All ER 1181.
3. Parker J’s assessment was too narrow. She relied on documents without sufficiently considering their full context, including the parties’ reversal of position in the property litigation. She also failed adequately to examine S’s continuing links with Italy, including accommodation and schooling, the circumstances of the arrival in England, and the stability of the stay. The resulting finding was not reliable. The Court of Appeal did not substitute its own conclusion because the factual picture was incomplete and confused.
4. The form of the rehearing, including whether oral evidence is required, was for the trial judge. Lady Justice Black indicated that at least limited oral evidence might be appropriate where the evidence is particularly confused.
5. The order requiring S’s return to England necessarily fell away once the habitual-residence finding was overturned. The alternative argument based on Article 13 of Council Regulation (EC) No 2201/2003 was not determined. The Court also urged the parties to consider whether welfare proceedings would be better conducted in Italy, where S had lived for most of the preceding years and where the mother had accommodation and family support.

• Court of Appeal (Civil Division): Appeal allowed. The habitual-residence finding was overturned and the issue was remitted for rehearing before a different judge. The consequential return order fell away.
• Principal Registry of the Family Division: Parker J declared on 3 December 2013 that S was habitually resident in England and Wales on 23 September 2013. On 7 February 2014 she ordered S’s return to England for a CAFCASS welfare assessment.