NH (1996 Child Protection Convention: Habitual Residence), Re

Under the 1996 Child Protection Convention, jurisdiction ordinarily rests with the state of a child’s habitual residence. Where habitual residence cannot be established, Article 6(2) gives the courts of the state where the child is physically present a jurisdiction of necessity. The court should not strain to identify a habitual residence merely to produce the Convention’s usual outcome.

Habitual residence is a factual inquiry into the child’s integration in a social and family environment, assessed by reference to all relevant circumstances. For an adolescent, the child’s own state of mind and perception of home may be highly material. Parental intention is relevant but not decisive. Stability, lawful ability to remain, the strength of connections, and the views of the state said to be the child’s habitual residence must also be considered.

The London Borough of Sutton sought orders under the inherent jurisdiction and Part IV of the Children Act 1989 concerning a 15-year-old dual Canadian and Zimbabwean national.

The child had spent several years moving between Switzerland and residential schools in Zimbabwe and Germany. He travelled to England from Switzerland, where his residence permit had expired and his registration had been cancelled. His mother intended him to travel onwards to South Africa and Zimbabwe, while he opposed that plan. The issue was whether England had substantive jurisdiction, in particular whether the child was habitually resident in Switzerland, Zimbabwe, Canada or England, or whether Article 6(2) applied because habitual residence could not be established.

The English court had jurisdiction. The judge concluded that the child’s habitual residence could not be established and that jurisdiction therefore arose under Article 6(2) of the 1996 Child Protection Convention, because the child was physically present in England.

1. Applicable framework. Article 5(1) places primary jurisdiction in the courts of the child’s habitual residence. Article 6(2) extends the same jurisdiction to the state where the child is present when habitual residence cannot be established. The Convention does not adopt the same fixed time-of-seisin approach as Brussels IIa. The relevant assessment was made at the hearing, having regard to the absence of perpetuatio fori under the Convention.
2. Habitual residence. The inquiry was factual and concerned the degree of the child’s integration in a social and family environment, including the stability of the residence. Parental intention was relevant but did not determine the issue. For an adolescent, the inquiry had to include the child’s own state of mind and perception of home, while those views did not displace the other evidence.
3. Application. Switzerland was a powerful candidate because the child regarded it as home and had spent much of the previous three years there. However, his residence permit and registration had ended, he lacked a realistic lawful route to return, his schooling and living arrangements had been unstable, and his connections were comparatively recent and fragile. The Swiss authorities themselves considered that he had no habitual residence in Switzerland and that Article 6(2) applied.
4. Conclusion. The court rejected Zimbabwe and Canada as habitual residences and accepted that England was not the child’s habitual residence. It nevertheless had jurisdiction of necessity to make substantive protective orders. Directions were given for the proceedings to be managed swiftly and in a child-focused manner.