CK (Children) (Care proceedings, Habitual Residence, Article 15)

Habitual residence is determined by a broad assessment of the child’s integration in a social and family environment and the stability of the residence. Permanent residence is unnecessary. A child’s habitual residence may change unilaterally after wrongful removal, including through subsequent integration resulting from State intervention.

Under Article 15 of Brussels IIA, the court must address three questions for each child: particular connection with another Member State, whether that State’s courts are better placed, and whether transfer is in the child’s best interests. Where children will remain in England during the proceedings and have significant care options there, transfer requires powerful countervailing factors.

North Tyneside Council commenced care proceedings concerning four Lithuanian children who had moved from Lithuania to England in January 2014. The proceedings were issued in April 2015. The court had to determine whether the children were habitually resident in England and Wales when proceedings commenced and, if so, whether jurisdiction should be transferred to Lithuania under Article 15 of Brussels IIA.

The Lithuanian Central Authority requested transfer, relying on the children’s nationality, family connections, historical circumstances and the availability of potential carers and evidence in Lithuania. The local authority, mother and guardian opposed transfer. The central issues were habitual residence, the Article 10 abduction jurisdiction provisions, and the three requirements for an Article 15 transfer.

1. Jurisdiction. The children were habitually resident in England and Wales when the proceedings commenced. Habitual residence required a broad assessment of whether their residence had acquired the necessary quality of stability and reflected some degree of integration in a social and family environment. By April 2015 the children were settled in foster placements, attending school or nursery, and integrated into life in England. The fact that this development resulted significantly from State intervention did not alter the reality of their environment.
2. The children’s residence in England had initially been fragile and unsettled. Nevertheless, the subsequent changes in their circumstances, particularly schooling and accommodation under s.20 of the Children Act 1989, were relevant to the assessment. The children’s nationality, Lithuanian family connections and, particularly for the older children, their expressed views also had to be considered. The court therefore had jurisdiction under Article 8 of Brussels IIA.
3. Article 10 did not preserve Lithuanian jurisdiction. The children had remained in England for more than one year after their father became aware of their presence, and no request for their return had been lodged in England within that period.
4. Article 15. The children had a particular connection with Lithuania. However, the Lithuanian courts were not better placed to hear the case. Lithuania was well placed to investigate the family’s circumstances before January 2014 and potential carers there. England was better placed to investigate the events giving rise to the care proceedings, assess the mother, and consider the children’s wishes and feelings. Evidence and assessments could be obtained from Lithuania without transferring jurisdiction.
5. Transfer would not be in the children’s best interests. They were to remain in England pending substantive investigations, and their possible long-term care options existed in both England and Lithuania. The court observed that transfer to a Member State where the child would not live during the proceedings would ordinarily require powerful countervailing factors. No request for transfer was therefore made.

First-instance determination of jurisdiction and an Article 15 transfer request. No appellate history was stated in the judgment.