Re: R (A Child) v (Transcript of the Handed Down Judgment Of

A child’s habitual residence is a factual question determined by the degree of integration in a social and family environment. Duration of presence is relevant but is not determinative. For a young child who is highly dependent on a primary carer, the child’s habitual residence may, on the particular facts, be effectively determined by the carer’s habitual residence.

Integration does not require happiness, adequate care or freedom from abuse. A social and family environment may contain both positive and negative features. Appellate courts should afford substantial respect to the assessment of a trial judge who heard the witnesses and applied the correct legal test.

Care proceedings concerning a four-year-old child were brought under Part 4 of the Children Act 1989. The child had been born in Morocco, had travelled between several countries and had lived in England with her mother since March 2013. Hayden J held that the child and her mother had remained habitually resident in the United Kingdom throughout the child’s life. The English court therefore had jurisdiction under the Brussels II Revised Regulation.

The Moroccan father appealed. He argued that the finding was contrary to the evidence, particularly the lengthy period spent in Morocco, and that the judge had failed to consider the child’s difficult daily life after arriving in England. The central issue was whether the habitual-residence finding was legally and evidentially sustainable.

1. Appeal dismissed. Hayden J’s determination that the child was habitually resident in the United Kingdom was open to him on the evidence and accorded with the governing law. McFarlane LJ delivered the judgment, with which Kitchin and Floyd LJJ agreed.

2. Habitual residence is a factual question governed by the degree of integration in a social and family environment. The trial judge had stated the law correctly. Substantial appellate respect was due to his assessment because he had heard extensive oral evidence and neither parent was a reliable witness.

3. The mother had acquired habitual residence in England before 2006. Her later movements did not establish sufficient integration in Morocco before November 2011. During the subsequent 16-month stay, its duration favoured Moroccan habitual residence, but duration was not determinative. The evidence supported the findings that the mother was unhappy, socially and linguistically unintegrated, intermittently separated from the father, subjected to domestic violence and in Morocco only as a temporary refuge. The judge could therefore find that she had not lost her English habitual residence.

4. On these particular facts, the young child’s social and family environment was effectively determined by that of her mother because of the child’s high degree of dependence. The child’s poor and allegedly abusive experience after arriving in England did not prevent habitual residence. Integration does not require happiness, adequate care or freedom from abuse; the relevant environment may contain positive and negative features.

5. The judge’s conclusion that habitual residence had existed in the United Kingdom throughout the child’s life was wider than necessary. Ordinarily, the court should determine habitual residence at the date relevant to jurisdiction and should avoid an unnecessarily global finding which may obscure alternative routes to the answer. Nevertheless, the wider finding was sustainable here.

6. The majority observations in A v A concerning physical presence as a necessary precursor to habitual residence were expressly outside that decision’s ratio and were distinguishable because this child had been physically present in England on several occasions.

1. Court of Appeal (Civil Division): The father’s appeal was dismissed and Hayden J’s determination that the child was habitually resident in the United Kingdom was upheld: [2015] EWCA Civ 674.
2. High Court, Family Division: Hayden J held that the child had been habitually resident in the United Kingdom throughout her life. The courts of England and Wales consequently had jurisdiction over the care proceedings. No neutral citation for that decision is stated.