London Borough of Lambeth v JO & Ors

In care proceedings with an international element, jurisdiction under Brussels II Revised depends primarily on the child’s habitual residence when the court is seised. Habitual residence is a factual, child-centred inquiry into integration in a social and family environment. It is not determined by nationality, parental domicile or time spent in one country alone. An infant’s environment is ordinarily assessed through the person or persons on whom the infant depends, while the wider family setting remains relevant. Where habitual residence cannot be established and the children are present in England and Wales, Article 13 may provide jurisdiction for public law proceedings. Article 12 requires genuine acceptance of jurisdiction by all relevant parties. Jurisdiction is for the court to determine, and must be addressed expressly and at the earliest stage.

The local authority brought care proceedings concerning four siblings connected with England and Nigeria. The two youngest children, Tr and Ty, had Nigerian connections, while their father lived in England and their mother was habitually resident in Nigeria. Tr had spent most of her life in Nigeria but had significant family connections in England. Ty had been born in England and had never been to Nigeria.

The issue was whether the court had substantive or temporary and protective jurisdiction concerning the youngest children. The court considered habitual residence, acceptance of jurisdiction under Article 12, presence under Article 13, and possible residual jurisdiction under Articles 14 and 20.

1. The court held that it had jurisdiction under Article 13 of Council Regulation 2201/2003. Neither Tr nor Ty could be found to have a habitual residence in either England and Wales or Nigeria on the evidence and in the particular circumstances of the case. Both children were present in England and Wales when the court was seised.

2. Habitual residence is a question of fact. The governing inquiry is the place reflecting some degree of integration by the child in a social and family environment. The court must consider all the circumstances, including the duration, regularity, conditions and reasons for the stay, parental intentions, schooling, nationality, language, and family and social relationships. Time spent in one jurisdiction is relevant but is not determinative.

3. For a young child or infant, the relevant environment is largely familial and the court must assess the integration of the person or persons on whom the child depends. That does not permit the court simply to attribute the mother’s habitual residence to an infant. The child’s wider social and family environment, including the relationship with a father living in another country, must also be considered.

4. Applying that approach, Tr had meaningful integration and family connections in both jurisdictions. Her life in Nigeria was closely connected with her mother and nursery, but the family unit was centred in London and she regarded London as a home with her father and siblings. The evidence did not permit a reliable conclusion that either jurisdiction was her habitual residence.

5. Ty had never been to Nigeria and was dependent on her mother, who was habitually resident there. However, her father and the family unit were based partly in England, and the evidence did not establish habitual residence in either country. Her presence in England did not, by itself, establish habitual residence in England.

6. Article 12 did not apply because all parties had not genuinely accepted jurisdiction. The mother had previously challenged jurisdiction and continued to seek to return to Nigeria with the children. Article 14 therefore did not need to be considered.

7. The burden of addressing jurisdiction rests with the court. Although the local authority must consider jurisdiction at the outset, the obligation extends to all parties. Judges must raise the issue proactively where necessary and state clearly in the judgment and order the precise basis on which jurisdiction is accepted or rejected.

First-instance judgment. The judgment records earlier directions and hearings in the Family Court but no appeal from a lower-court decision.