D (A Child : Jurisdiction : Habitual Residence)

Habitual residence is a fact-sensitive question requiring an overall assessment of the child’s integration in a social and family environment. The duration, regularity, conditions and reasons for the stay, schooling, language, nationality, family relationships and parental intentions may all be relevant. Parental intention is a factor, not a controlling legal test.

A child may retain habitual residence in the former state during a temporary absence. Where the child has acquired habitual residence in a new state, the court must assess whether the child has become sufficiently integrated there and sufficiently disengaged from the former state. Length of presence is relevant but not determinative.

The father applied for child arrangements, prohibited steps, specific issue and return orders concerning D, an eight-year-old child of dual British and French nationality. The mother had relocated with D from England to France in September 2013. D lived there, attended school and developed social and family connections until December 2015.

The mother then brought D to England. They remained there until 22 April 2016, when they returned to France and D resumed his former school. The father issued his applications on that date. The preliminary issue was whether D was habitually resident in England when the court was seised under Article 8 of Council Regulation (EC) No 2201/2003.

The father’s applications were dismissed. D was habitually resident in France on 22 April 2016, so the English court lacked jurisdiction under Article 8(1) of Council Regulation (EC) No 2201/2003.

1. Applicable approach. Habitual residence is a question of fact. The court adopted the European test of the place reflecting some degree of integration in a social and family environment. The inquiry is individual and holistic. It must not be replaced by rigid sub-rules or by a legal concept derived from domicile.
2. France, September 2013 to December 2015. D had lived in France almost continuously with his primary carer, in a settled home and family unit. He attended a local school, became fluent in French and formed friendships. The father knew, or closed his eyes to, the mother’s intention that the relocation should be permanent. D had therefore become habitually resident in France.
3. England, December 2015 to April 2016. The court used a balance-sheet approach. Factors supporting a transfer included D’s temporary schooling in Sussex, the mother’s January statement that he would continue his education in England, the one-way journey, possible exploration of accommodation and the father’s local contact arrangements.
4. Factors pointing against a transfer were stronger. D’s established life, school, friends, language and family unit remained in France. W, the mother’s partner, the family dog and most of D’s belongings remained there. The English accommodation was temporary and unsuitable as a permanent home; there was no evidence of employment, benefits, social housing or medical registration. D returned to his former French school immediately after the French holidays.
5. The period of almost 18 weeks in England was significant but not decisive. Taken cumulatively, the evidence showed neither the requisite integration in England nor sufficient disengagement from France. D therefore retained habitual residence in France.
6. The threatened application under Schedule 1 of Children Act 1989 did not establish an intention to remain in England. Under Article 3 of Council Regulation (EC) No 4/2009, such an application could have been made while the mother remained habitually resident in France.

The judgment describes interim hearings before Wood J on 22 April and 9 May 2016 and Mostyn J on 27 April 2016. The orders made at those hearings were stayed or discharged pending determination of jurisdiction. This court determined the jurisdictional issue at first instance and dismissed the father’s applications.