SF v HL

Habitual residence depends on a child’s integration in a social and family environment, assessed in all the circumstances. Parental plans and preparatory steps are relevant but not determinative. A short, unsettled stay may be insufficient to change habitual residence.

Where no Member State has jurisdiction under article 8 of the Regulation, jurisdiction may arise from the child’s presence under article 14 and the Family Law Act 1986. Proceedings may nevertheless be stayed where another available forum is clearly and distinctly more appropriate. The child’s best interests are important in that decision but are not paramount.

The father applied for orders concerning R after R, a dual South Korean and British national, came to England with her mother from South Korea. The parents disagreed about whether their plans involved a temporary stay or a permanent move. The father issued proceedings in England shortly before the mother intended to return to South Korea. Parallel divorce and contact-related proceedings were already on foot in South Korea.

The court considered whether R was habitually resident in England for the purposes of article 8 of Council Regulation (EC) 2201/2003. If not, it had to determine whether jurisdiction arose from R’s presence under article 14 and the Family Law Act 1986, and whether England or South Korea was the appropriate forum.

1. Habitual residence. R was not habitually resident in England when proceedings were issued. The court considered the parents’ intention, the lease, nursery enrolment and general-practitioner registration. Those matters could indicate a transfer of habitual residence, but were outweighed by R’s life-long integration in South Korea, her language, nationality, primary care and wider family there.
2. R had been in England for under three weeks. She had not attended nursery or consulted the general practitioner. The parents’ relationship had rapidly become unstable and involved alleged domestic abuse, and R had only a limited relationship with her father. This unsettled context made integration in an English social and family environment less likely. Habitual residence can change quickly, even within one day, but this was not such a case. R remained habitually resident in South Korea.
3. Presence jurisdiction. As R was not habitually resident in a Member State, article 14 applied. Under sections 2(1) and 3(1)(b) of the Family Law Act 1986, the English court had jurisdiction based on R’s presence in England when proceedings were issued.
4. Forum conveniens. South Korea was clearly and distinctly the more appropriate forum. R had her strongest connection there, proceedings were already pending there, and the South Korean courts were assumed to have procedures for a fair determination of parental claims. The father could travel to South Korea, the mother could reside there, and her position in England was precarious because her spousal visa was due to expire. Neither jurisdiction had a language advantage.
5. R’s best interests were important but not paramount in determining forum. The English proceedings were stayed.