F (A Child), Re

In care proceedings with a foreign dimension, jurisdiction under Brussels II revised ordinarily depends on the child’s habitual residence when the court is seised. Presence alone is insufficient. Habitual residence reflects a degree of the child’s integration in a social and family environment. For an infant or young child, the court must also assess the integration of those on whom the child depends.

The court must address jurisdiction at the outset, give every relevant party a proper opportunity to adduce evidence and make submissions, and explain the jurisdictional basis in its judgment and order. A final declaration cannot be made without notice, by default, concession or agreement. It must be supported by evidence.

The father sought permission to appeal out of time against an order made by Coleridge J in care proceedings concerning his daughter. The High Court had found that the child was habitually resident in England and Wales. It did so without a judgment, without the father being present or represented, and without notice that habitual residence would be determined.

The father contended that the judge had neither applied the required integration test nor observed a fair procedure. The central issue was whether the finding of habitual residence, on which jurisdiction depended, could stand.

1. Appeal allowed and remitted. The father’s time for appealing was extended and permission to appeal was granted. The delay could not prevent the jurisdictional challenge from being heard, despite its damaging consequences for the child. The question of habitual residence was remitted for a fresh hearing before another judge.

2. In a care case with a foreign dimension, Brussels II revised determines the English court’s jurisdiction even where the other country is not an EU member state. Under Article 8(1), the child’s presence in England and Wales is insufficient. The starting point is an inquiry into the child’s habitual residence when the court was seised.

3. The applicable test asks whether the country reflects some degree of the child’s integration in a social and family environment. Where the child is an infant or young child, the court must also assess the integration of the persons on whom the child depends. Coleridge J did not address that critical inquiry and gave no adequate explanation for his conclusion.

4. Jurisdiction must be considered when proceedings are issued and at the case management hearing. The judgment and order should expressly identify the basis on which jurisdiction is accepted or rejected. Judges must raise the issue themselves where the parties have overlooked it.

5. A final determination of habitual residence requires a proper opportunity for every relevant party to adduce evidence and make submissions. A declaration made without notice is valueless and potentially misleading. Before full investigation, the order should record only that habitual residence provisionally appears to exist. A final declaration cannot be made by default, concession or agreement; the court must be satisfied by evidence.

6. The High Court’s order could not stand because the judge decided the disputed jurisdictional issue without notice to the absent father, without applying the integration test and without adequate reasons. The rehearing judge was to decide whether the child was habitually resident in England and Wales when the court was first seised. The Court of Appeal expressed no view on alternative jurisdictional grounds that might arise if she was not.

7. As practical guidance, an order directing an expert’s instruction should expressly record that the court is satisfied, under section 13(6) of the Children and Families Act 2014, that the appointment is necessary to assist the just resolution of the proceedings.

• Court of Appeal (Civil Division): Extended time, granted permission to appeal, allowed the appeal and remitted habitual residence for rehearing before another judge: [2014] EWCA Civ 789.
• High Court, Family Division: Coleridge J found by order dated 14 March 2013 that the child was habitually resident in England and Wales. That finding was set aside.