Leicester City Council v Chhatbar

Habitual residence is determined by the child’s integration in a social and family environment. For an infant, that environment is ordinarily shared with the parents or other persons on whom the child depends. The parents’ purposes and intentions are relevant, but they are only factors in the overall assessment.

A purported permanent departure does not necessarily terminate habitual residence where the family has not materially severed its integration in the former country. The court may determine habitual residence to support potential proceedings under the Hague Convention, even where the practical relevance of the declaration depends on a later removal to another Convention country.

The local authority sought a declaration concerning the habitual residence of a child born in Leicester. The child’s parents had taken him from England and Wales to the Turkish Republic of Northern Cyprus, where they said they intended to settle permanently.

The central issue was whether the child remained habitually resident in England and Wales on 17 October 2013, when he was made a ward of court. The issue was relevant to a possible future argument that the child had been unlawfully retained in Northern Cyprus if later taken to a Hague Convention country.

1. Declaration. The child was habitually resident in England and Wales on 17 October 2013.
2. The court applied the approach stated in Re A (Jurisdiction Return of Child) [2013] UKSC 60. The relevant test is the child’s integration in a social and family environment. For an infant, the assessment must include the integration of the parents or other persons on whom the child depends.
3. The parents’ social and family environment remained substantially rooted in England and Wales. They had lived in Leicester, had family connections there, and had not clearly severed their integration in England and Wales. Their asserted intention to settle permanently in Northern Cyprus was relevant but not decisive.
4. The circumstances in Northern Cyprus pointed against established integration there. The parents were neither nationals nor ethnic members of that community, spoke neither local language, had arrived on tourist visas, had only short-term accommodation, lacked employment rights and local institutional ties, and had no established family network there. The father’s continuing consideration of a return was also relevant.
5. The court accepted the approach in Re A (Jurisdiction Return of Child) that the test derived from R v Barnet London Borough Council, ex p Shah should no longer be used for determining a child’s habitual residence.
6. The court made a declaration, directed the obtaining of expert evidence concerning the prospects of implementing a return order in Northern Cyprus, and listed the matter for further consideration. It made no finding on the merits of the local authority’s protective case or on the likely outcome of any future Hague Convention application.
7. Permission to appeal was refused. The judge held that there was no real prospect of success and no other compelling reason for an appeal, while noting that the respondents could renew the application in the Court of Appeal.