H, Re

A child’s habitual residence is determined by a factual inquiry tailored to the individual circumstances. The former rule that one of two parents with parental responsibility cannot unilaterally change the child’s habitual residence no longer forms part of English law. Parental intentions and the stability of the child’s residence remain relevant factors, but neither is conclusive.

Article 10 of Council Regulation (EC) No. 2201/2003 applies where a child is wrongfully removed to or retained in a non-Member State. The original Member State retains jurisdiction until the child acquires habitual residence in another Member State and the additional requirements of article 10 are satisfied. Having jurisdiction is distinct from making a substantive order: the court may exercise jurisdiction and conclude that the child’s welfare requires the proceedings to end without further order.

The father sought the return to England of two British children who had lived with their mother in Bangladesh since infancy. He alleged that the mother had wrongfully retained them and that their welfare was at risk. Proceedings concerning the children had also taken place in Bangladesh.

Peter Jackson J dismissed the father’s inherent-jurisdiction application because the children were no longer habitually resident in England and Wales. Although their nationality provided a theoretical basis for the parens patriae jurisdiction, he considered intervention inappropriate.

The father appealed. The principal issues were whether a parent can unilaterally change a child’s habitual residence, whether article 10 of Council Regulation (EC) No. 2201/2003 applies to wrongful retention in a non-Member State, and whether any available jurisdiction should produce a return order or further welfare inquiry.

1. The appeal was dismissed unanimously, although for reasons different from those of Peter Jackson J. The English court possessed jurisdiction under article 10 of Council Regulation (EC) No. 2201/2003, but the proper exercise of that jurisdiction was to dismiss the wardship proceedings without making a substantive order.

2. Habitual residence is an essentially factual and individual inquiry. Legal constructs must not produce a result different from that indicated by the facts. Parental purposes and intentions, the child’s integration in a social and family environment, and the stability or precariousness of the residence are relevant. A parent’s lack of consent does not inevitably prevent the child acquiring a new habitual residence.

   The supposed rule that one of two parents with parental responsibility cannot unilaterally change a child’s habitual residence was therefore consigned to history. After nearly five years in Bangladesh, the children were no longer habitually resident in England and Wales. The judge’s factual conclusion on that issue was upheld.

3. Article 10 applies even though the child has been removed to or retained in a non-Member State. The Regulation’s jurisdictional provisions are not confined to disputes involving rival Member States. On the assumed basis that the children had been wrongfully retained, England and Wales retained jurisdiction because the children had not acquired habitual residence in another Member State.

   The words “another Member State” could not be interpreted purposively as meaning any other State. The Regulation distinguishes deliberately between Member States and third States, and the court could not supply wording that its drafters had omitted.

4. Because jurisdiction existed under article 10, there was no room to invoke the parens patriae jurisdiction. The court left open whether jurisdiction under the Regulation could be declined on forum conveniens grounds, since the point had not been fully argued and did not require determination.

5. The existence of jurisdiction is distinct from its substantive exercise. A court may hear and determine proceedings yet conclude positively that the child’s welfare requires no order. It may terminate proceedings summarily where continued investigation offers no solid advantage to the child.

   The children had spent virtually their entire lives in Bangladesh, the evidence was uncertain, and local proceedings were already under way. An immediate return order risked serious harm, while further English investigation was unlikely to yield a sufficiently reliable basis for intervention. Remittal would therefore have been futile.

1. Court of Appeal (Civil Division): The father’s appeal was dismissed unanimously in [2014] EWCA Civ 1101. The wardship proceedings remained dismissed, although the court held that jurisdiction existed under article 10 and substituted welfare-based reasoning for the jurisdictional reasoning below.

2. Principal Registry of the Family Division: Peter Jackson J dismissed the father’s application on 24 September 2013, holding that the courts of England and Wales lacked jurisdiction. No citation for that decision is stated in the judgment.