Bristol City Council v AA & Anor

Habitual residence under Brussels II Revised is a factual question focused on the child’s integration in a social and family environment. The court must avoid importing legal concepts which distort that factual enquiry. A child’s habitual residence may be assessed through the circumstances and integration of the parent on whom the child depends.

An Article 15 request is exceptional. It requires affirmative answers to three questions: whether the child has a particular connection with the other Member State, whether that state’s court would be better placed to hear the case, and whether transfer is in the child’s best interests. The best-interests enquiry concerns the appropriate forum, not the substantive welfare outcome. Delay may undermine the purpose of Article 15.

Care proceedings concerning a Lithuanian child were continuing in the Bristol County Court. The High Court was asked to determine whether the child was habitually resident in England or Lithuania when proceedings were issued and, if England had jurisdiction, whether the proceedings should be transferred to Lithuania under Article 15 of Council Regulation (EC) 2201/2003.

The child had lived in Lithuania until March 2013, then lived and attended school in England with his mother. The mother’s intentions concerning the duration of the stay were disputed. The proposed future options included return to the mother, placement with the maternal grandmother in Lithuania, or permanent placement outside the family, potentially in Lithuania.

1. The court had jurisdiction under Article 8. Habitual residence was a question of fact, assessed by reference to the child’s integration in a social and family environment. The court adopted the principles summarised in A v A [2013] UKSC60 and confirmed in Re E [2014] EWHC 6 (Fam).

2. The mother’s intention when she brought the child to England was to remain indefinitely. Although their social integration was limited, the mother had obtained employment and the child had entered and continued at school. There was therefore sufficient integration for the child to be habitually resident in England when the proceedings were issued.

3. Article 15 required three affirmative findings: a particular connection with Lithuania, that a Lithuanian court would be better placed to hear the case, and that transfer would be in the child’s best interests. The three-question approach in AB v JLB [2009] 1 FLR 517 was applied, consistently with Nottingham City Council v LM [2014] EWCA Civ 152.

4. The child had a particularly close connection with Lithuania because he was born and raised there, had been habitually resident there until shortly before the proceedings, spoke Lithuanian, and had family there. Lithuania was better placed to determine the case because the likely future options, evidence, language and cultural context were substantially connected with that country.

5. The Article 15 best-interests assessment concerned the forum in which the case should be determined, rather than the substantive welfare question. The court also took account of the risk of delay. Waiting before making a request could increase the significance of delay and judicial continuity and undermine the purpose of Article 15. All three conditions being satisfied, the court requested that a Lithuanian court assume jurisdiction.

First-instance jurisdiction decision. The care proceedings were continuing in the Bristol County Court before being transferred to the High Court for determination of the jurisdiction issues.