West Sussex County Council v H

Habitual residence is determined by the child’s degree of integration in a social and family environment. For an infant, that environment is shared with those on whom the child depends, although the child’s habitual residence does not invariably follow that of a person with lawful custody. Parental purposes and intentions are relevant factors, but the focus remains on the child’s circumstances. A child may acquire habitual residence despite uncertainty about parts of the care history and irregular immigration status. Where jurisdiction is governed by Council Regulation (EC) No 2201/2003 (Brussels II Revised), Article 15 cannot transfer proceedings to a non-Member State, and Article 61 prevents reliance on the corresponding Hague Convention provision.

The local authority brought care proceedings concerning H, an Albanian citizen born in England. H’s mother was absent and her whereabouts were unknown. H had apparently remained in England since birth, but there was uncertainty about her care arrangements before she was placed with foster carers.

The court determined whether H was habitually resident in England when proceedings were issued and whether the proceedings should be transferred to Albania. The parties agreed that jurisdiction was primarily governed by Article 8 of Council Regulation (EC) No 2201/2003 (Brussels II Revised).

1. The court held that H was habitually resident in England and had jurisdiction to determine the care proceedings.
2. Applying A v A & Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60, the court assessed H’s integration in England’s social and family environment. Her birth and apparent continuous presence in England, together with evidence of integration, were sufficient despite uncertainty about her care history and immigration status.
3. Article 15 of Council Regulation (EC) No 2201/2003 (Brussels II Revised) could not be used to transfer proceedings to Albania because Albania was not a Member State. Article 61(a) also prevented reliance on Article 8 of the 1996 Hague Convention as an alternative transfer mechanism.
4. There was no positive obligation under either instrument to consider transferring the proceedings to Albania. Assessments of possible placement with wider family members in Albania should nevertheless continue, with placement to be considered if those assessments were positive.

First-instance determination. The judgment referred to Re E [2014] EWCA Civ 789 concerning early determination of jurisdictional issues.