PKA v CJC

A child’s habitual residence is determined from the factual circumstances of the child’s life. Continuous, settled residence in England for substantially the whole of the child’s life may plainly establish habitual residence here, even where the child retains another nationality and a foreign court has made a later order.

Once habitual residence in England and Wales is established, the courts of England and Wales have jurisdiction to make orders concerning parental responsibility. Where the respondent has been properly served but deliberately declines to participate, the court may proceed and make protective and residence orders on the evidence available.

The applicant mother sought orders concerning her child, who had travelled from the United States to England at about three months old and had lived continuously with her in England for over three years. The respondent father, an American citizen, did not participate in the proceedings.

The mother had discovered that a court in Georgia had granted the father sole physical and legal custody in December 2015, and that an arrest warrant had subsequently been issued against her. The issues were whether the child was habitually resident in England and Wales, whether this court had jurisdiction, and what protective orders should be made. The father was personally served on several occasions but did not attend or respond.

1. Habitual residence. The court accepted the mother’s account of the relevant events. The child had lived continuously and in a settled way at the same address in England for over three years, effectively for the whole of his life. He was therefore habitually resident in England and Wales both when the foreign custody order was made and when the present proceedings commenced.
2. Jurisdiction. The child’s habitual residence in England and Wales founded the jurisdiction of the courts of England and Wales to make orders concerning matters of parental responsibility. The child’s dual nationality and the existence of the later order of the Superior Court of Gwinnett County did not alter that conclusion.
3. Service and participation. Affidavits from a process server established personal service of the significant documents and notice of the hearing. Additional communications had been sent electronically. The father had deliberately made no attempt to engage with the proceedings, so the court proceeded in his absence.
4. Orders. The court declared the child habitually resident in England and Wales and ordered that he live with the mother. The father was prohibited from removing the child from the mother’s care, from delegated care arrangements, or from England and Wales. Any further application by the father was required to be made on notice to the mother and initially to the High Court in London. The order and judgment were to be served personally on the father and sent for information to the relevant American court and lawyers.