SR (A Child : habitual residence) (Rev 4)

Habitual residence is a question of fact, distinct from domicile. The central inquiry is the child’s degree of integration into a social and family environment. The court must consider the quality, stability and circumstances of the residence, including its duration, conditions, reasons, the child’s age, education, language, nationality and family and social relationships. Parental intentions are relevant but not determinative. For an infant or young child, the relevant environment will ordinarily be shared with the person on whom the child depends. Geographical presence and time spent in a country are not conclusive; the court must assess the child’s emotional as well as factual integration.

The local authority brought care proceedings concerning SR, a child born in Morocco to an American mother and Moroccan father. SR had lived in several countries and had been in England since March 2013. During the care proceedings, the court’s jurisdiction was questioned because her habitual residence was uncertain. The issue was transferred to the High Court for determination. The father contended that SR remained habitually resident in Morocco. Other parties argued for habitual residence in England, or raised the possibility of proceedings in New York. The central issue was whether SR was habitually resident in the United Kingdom at the relevant time.

1. Habitual residence. The court applied the child-centred test identified by the Supreme Court in A v A (Children: Habitual Residence) [2013] UKSC 60 and Re LC (Reunite: International Child Abduction Centre Intervening) [2014] UKSC 1. Habitual residence is factual and must not be equated with domicile or determined by a fixed legal rule. The question is whether the child has achieved sufficient integration into a social and family environment for residence to be termed habitual.
2. The quality of the residence matters. Relevant considerations include duration, regularity, living conditions, reasons for the stay and move, the child’s nationality, education, linguistic knowledge, and family and social relationships. The court must assess the child’s actual experience and perceptions where appropriate. Concrete facts such as birth or duration are not determinative, and integration includes emotional as well as geographical features.
3. For a very young child, the social and family environment is normally shared with the primary carer. A divergence between the child’s habitual residence and that of the primary carer is possible, but ordinarily requires clear evidence of another strong attachment.
4. The court rejected the submission that the child’s habitual residence should be determined by a literal approach to article 7(1)(b) of the 1996 Hague Convention which displaced the factual inquiry. Article 7(1)(b) remained effective, and the contrary approach would undermine international comity.
5. Applying the evidence, the mother had not integrated into Moroccan life, and Morocco had been a temporary refuge rather than a settled home. SR’s security and social environment were closely linked to her mother. The court therefore found that SR’s habitual residence was, and had been throughout her life, in the United Kingdom.

This was a first-instance determination in care proceedings. The judgment does not state any subsequent appellate decision.