B (A Child) (Habitual Residence) (Inherent Jurisdiction)

Habitual residence is a factual inquiry into the child’s integration in a social and family environment. The court must evaluate all relevant circumstances, focus on the child’s situation, and treat parental intentions as only relevant factors. Artificial sub-rules and labels should be avoided.

The inherent jurisdiction over a British child abroad remains available, but its exercise requires exceptional circumstances and extreme circumspection. A return application cannot be used as a back-door means of securing contact or care orders. The inadequacy of foreign remedies alone will not meet the high threshold.

The appellant was the former partner of P’s mother. P had been conceived by IVF using an unknown donor and had been brought up in the parties’ household, although the respondent was her sole legal parent and primary carer. Following the parties’ separation, the respondent took P to Pakistan intending to establish a permanent life there.

The appellant commenced proceedings under the Children Act 1989 and sought a return order under the inherent jurisdiction. Hogg J found that P was no longer habitually resident in England and Wales and declined to exercise the inherent jurisdiction. The appeal concerned whether that factual conclusion was open to the judge and whether the appellant’s difficulty in litigating in Pakistan justified wardship and summary return.

1. Disposition. The appeal was dismissed.
2. Habitual residence. The court reaffirmed that habitual residence is a question of fact. The inquiry concerns the child’s degree of integration in a social and family environment and requires evaluation of all relevant circumstances. It focuses on the child, while parental purposes and intentions are merely relevant factors. The concept should not be burdened with artificial legal glosses or labels such as psychological parent. The approach in [2010] Fam 42 was correctly applied.
3. Hogg J had conducted the required factual inquiry. She considered P’s circumstances in England and Pakistan, including P’s relationship with the appellant and the respondent’s intention to relocate permanently. Having applied the correct principles, her evaluation could only be disturbed if the conclusion was not reasonably open to her. That threshold was not met, consistent with [2015] UKSC 35.
4. Inherent jurisdiction. The jurisdiction to make a British child abroad a ward of court exists on the protective basis of the Crown’s relationship with the child. Its exercise remains subject to a very high threshold. The authorities describe the necessary circumstances as extraordinary, very unusual, really exceptional or dire, and require great caution and extreme circumspection. The modern limits imposed by the Family Law Act 1986, the primacy of habitual residence and international comity make recourse still more restricted. The reasoning in [2001] EWCA Civ 186 remained applicable and was not displaced by [2013] UKSC 60.
5. A claim which is in substance for contact or care falls within section 1(1)(d)(i) of the Family Law Act 1986. A return order cannot be used as an artificial route to obtain jurisdiction for such a claim. Although the appellant had no realistic opportunity to litigate in Pakistan, that fact alone did not justify intervention. P’s primary relationship was with the respondent, the removal was not wrongful, the appellant had not exercised parental responsibility and the dispute was essentially one about contact. The circumstances did not approach the necessary exceptional gravity.
6. The court did not decide whether an order should be refused as futile where neither parent nor child would return and enforcement abroad was doubtful. That issue would require fuller evidence about foreign law and practice. Wardship may nevertheless remain appropriate in protective cases involving forced marriage, female genital mutilation or travel to a dangerous war-zone, subject always to the circumstances of the individual case.

1. Court of Appeal (Civil Division) dismissed the appeal against Hogg J’s decision.
2. High Court of Justice, Family Division Hogg J dismissed the appellant’s applications under the Children Act and the inherent jurisdiction on 31 July 2014.