L (A Child) (Jurisdiction: Private Fostering), Re

Habitual residence under Brussels II Revised is a factual question. The court must assess whether the child is integrated into a social and family environment, considering all relevant circumstances. Parental intentions are relevant but not decisive. For a school-age child, the court should consider the home in which the child is actually cared for, schooling, friendships, language, cultural and religious connections, and the child’s own perception of her circumstances. A transfer under Article 15 is exceptional. It requires a particular connection with the other Member State, a finding that its courts are better placed to hear the case, and a conclusion that transfer is in the child’s best interests.

These were care proceedings concerning a Romanian child who had lived in Romania throughout her life before coming to England in September 2013 to live with Romanian carers. The child’s father later sought her return to Romania and disputed that she was habitually resident in England. The local authority, carers and Children’s Guardian contended that she was habitually resident in England. The father alternatively sought transfer of the proceedings to Romania under Article 15 of Brussels II Revised.

The court had to determine the child’s habitual residence when the care proceedings were issued and, if England had jurisdiction, whether the proceedings should be transferred to Romania.

1. Jurisdiction. The court held that the child was habitually resident in England when the proceedings were issued and that the English court therefore had jurisdiction. The governing test was whether England was the place reflecting some degree of integration by the child in a social and family environment, assessed factually and individually.
2. The child had lived with the carers in England for over a year, attended school there, had friends at school and church, received appropriate care, and regarded the carers as her parents. Her own perception and wish to remain formed part of the nature and quality of her residence. The father’s original consent, and his later change of intention, were relevant but not determinative. His limited action to secure her return was also relevant to the weight given to his withdrawal of consent.
3. Article 15 transfer. Transfer was an exception to the general jurisdictional rule and was to be narrowly construed. The court considered whether the child had a particular connection with Romania, whether the Romanian court would be better placed to hear the case, and whether transfer would be in the child’s best interests.
4. Although the child had a strong connection with Romania, the English court was better placed on the evidence then available. The child and important witnesses were in England, the father could participate through representation or a video link, and assessments had been undertaken in England. The Romanian authorities had not sought transfer and were not seised of proceedings.
5. Transfer was not in the child’s best interests. It would cause delay and left no identified safe interim placement, particularly given the allegations against the father and the child’s fear of returning to him. The court therefore declined to transfer the proceedings.