London Borough of Barking & Dagenham v SS

For jurisdiction under BIIR, habitual residence is a factual question focused on whether the child is integrated to some degree in a social and family environment at the time the court is seised. An adolescent’s own perception and state of mind may be relevant. Unconventional, precarious or marginal living arrangements do not prevent habitual residence where the evidence shows sufficient integration and that the child has made the country her home. If habitual residence cannot be established, presence may found jurisdiction under Article 13. A transfer under Article 15 is exceptional and requires both a particular connection with the other Member State and a finding that its court would be better placed to hear the case, consistently with the child’s best interests.

The local authority applied for a care order concerning SS, a Romanian-born Roma child believed to be aged 15. SS had lived mainly in Spain before being brought to England, apparently for exploitation, and had lived in England for more than eighteen months. The proceedings were transferred to the High Court to determine whether SS was habitually resident in England when the court was seised on 29 April 2014 and, if so, whether proceedings should be transferred to Spain or Romania under Article 15 of BIIR.

1. Jurisdiction. The court held that SS was habitually resident in England at the date of seisin. The inquiry required an assessment of all the circumstances and the degree of her integration into the social and family environment. For a mature or adolescent child, her own perceptions and state of mind were relevant.
2. Although SS’s life had been precarious, unstructured and partly unlawful, those features did not prevent habitual residence. Relevant considerations included her length of residence, lawful entitlement to remain, independence from parental care, work, intimate and social relationships, rejection of her former life in Spain, and perception of England as home. A person living on the fringes of society may still be a member of that society and acquire habitual residence there.
3. Alternative basis. Had habitual residence in England not been established, the court would have assumed jurisdiction under Article 13 because SS was present in England and was not habitually resident in Spain or Romania.
4. Transfer. Spain and Romania were Member States with which SS had particular connections, but neither was better placed to determine her future. Her connection with Romania was remote, while her continuing connection with Spain principally concerned her mother, from whom she wished to remain separated. Transfer would not have been in SS’s best interests.
5. The court therefore confirmed that the courts of England and Wales had jurisdiction under Article 8 and refused to transfer the proceedings under Article 15.

First-instance determination in the High Court concerning jurisdictional preliminary issues in care proceedings. No appellate history is stated in the judgment.