LR (A Child)

Under Council Regulation (EC) 2201/2003 (Brussels II revised), a child's habitual residence is determined by integration in a social and family environment, assessed for a young child through the adults on whom the child depends. A settled base, schooling and family life abroad may establish habitual residence there despite British nationality, parental residence in England or occasional UK contact. Article 12.3(b) requires express or unequivocal acceptance of jurisdiction; silence, failure to object, factual references or an unspecified intention to seek an order are insufficient. The best-interests inquiry is essentially forum conveniens. General expedition and commencement of proceedings do not establish jurisdiction where local determination is preferable.

This was the mother's appeal from a judgment of His Honour Judge Altman in the Central Family Court on a private-law application by the father concerning LR, born in July 2005. The issue was whether the English court had jurisdiction under Council Regulation (EC) 2201/2003 (Brussels II revised). The first-instance judge held that LR was habitually resident in England and Wales under Article 8 or, alternatively, that Article 12 conferred jurisdiction. The mother argued that LR had lived abroad with maternal relatives since 2011 and that she had not accepted English jurisdiction. The appeal concerned habitual residence, unequivocal acceptance and the child's best interests under Article 12.3(b).

Appeal allowed. The order declaring that the English court had jurisdiction was set aside. A declaration was substituted that the English court had no jurisdiction to determine the father's application.

1. Habitual residence under Article 8. The court applied the principles stated by the Supreme Court in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1. Habitual residence reflected integration in a social and family environment. For a young child, the relevant environment was assessed through the persons on whom the child depended. LR had lived abroad with her grandparents and aunt since 2011, attended school in Luxembourg and had a settled base abroad. It did not matter that it was uncertain whether her habitual residence was in Germany or Luxembourg. The absence of friends, short UK visits, contact with her father, nationality and parental circumstances did not establish habitual residence in England and Wales. The first-instance conclusion concerning Article 10 was correct, but Article 8 did not confer jurisdiction.
2. Acceptance under Article 12.3(b). Although the substantial-connection requirement in paragraph (a) was satisfied, paragraph (b) required unequivocal acceptance of jurisdiction by all parties when the court was seised and an exercise of jurisdiction in the child's best interests. Acceptance of a court other than that of the child's habitual residence was not lightly inferred, following Bush v Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437. The mother's silence, failure to challenge jurisdiction, pre-proceedings correspondence, statement that she did not want LR returned to the UK and unspecified intention to seek an order were not unequivocal acceptance. An application to dismiss for want of jurisdiction was also consistent with the latter response.
3. Best interests and forum conveniens. The best-interests question was essentially whether the case should be determined in England rather than elsewhere, as explained in In re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice and another intervening) [2009] UHSC 10, [2010] 1 AC 319. The commencement of proceedings and the general desirability of speed could not satisfy Article 12.3(b). The judge had wrongly treated both parents as resident in England and gave no adequate reason why the proceedings would be more expeditious there. LR's future was better determined locally, in the country of her habitual residence. The analysis in B v B (Brussels II Revised: Jurisdiction) [2010] EWHC 1989 (Fam), [2011] 1 FLR 54, had resonance, subject to caution against comparing cases merely by their facts.

• Court of Appeal (Civil Division) — In LR (A Child) [2014] EWCA Civ 1624, the appeal was allowed. The declaration that the English court had jurisdiction was set aside and the court declared that it had no jurisdiction.
• Family Court (Central Family Court) — His Honour Judge Altman held on 15 May 2014 that the child was arguably habitually resident in England and Wales under Article 8 or, alternatively, that jurisdiction arose under Article 12 of Council Regulation (EC) 2201/2003.