L (Habitual Residence: Domestic Abuse), Re

Habitual residence is determined from all the circumstances of the individual case. For an infant, particular weight may be given to the integration of the primary carer, because the infant shares that person’s social and family environment. Parental intentions are relevant but not decisive. A move does not establish a new habitual residence merely because it was contemplated as permanent or because the child has been physically present for several weeks. Duration, permanence, family and social connections, living conditions, and the reasons for the move must be assessed together. Domestic abuse, isolation, dependence and coercive control may form substantial barriers to integration. A child may therefore retain habitual residence in the former state despite physical relocation and an earlier intention to settle elsewhere.

Rotherham Metropolitan Borough Council applied for a care order under Part IV of the Children Act 1989 concerning L, an infant born in Ukraine to a Ukrainian mother and British father. L had lived in Ukraine for the first 13 months of her life before travelling to England with her mother in November 2015. Protective proceedings began on 5 March 2016.

The proceedings were transferred from the Family Court to the High Court to determine jurisdiction. The parents had initially conceded habitual residence in England, following a provisional view expressed by HHJ Jones. That issue was reconsidered because the concession had been made without full argument and the mother had not then had an interpreter. The central question was whether L had acquired habitual residence in England by 5 March 2016, or remained habitually resident in Ukraine.

1. Habitual residence. The court applied the principles derived from Proceedings brought by A [2010] Fam 42, Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22, In the matter of A, A v A [2013] UKSC 60 and Re B [2016] UKSC 4, [2016] 2 WLR 557. The question required an assessment of the child’s physical presence, permanence, duration, reasons for the move, nationality, living conditions, and family and social relationships.
2. For an infant, habitual residence is assessed primarily through the parent on whom the child depends. The mother’s integration was therefore central. Her intentions were relevant but not decisive. The deep integration of mother and child in Ukraine, including family, social, financial and cultural connections, meant that a new habitual residence was unlikely to arise quickly.
3. The mother and L had not achieved measurable integration in England. The mother was isolated, dependent on and controlled by the father, lacked meaningful community or family connections in England, and lived in unsuitable conditions. The abusive and volatile relationship created formidable barriers to genuine integration. The continuing daily links with the maternal family in Ukraine reinforced the conclusion that habitual residence had not shifted.
4. Accordingly, on 5 March 2016 L remained habitually resident in Ukraine. The Ukrainian judicial or administrative authorities had jurisdiction under article 5 of the 1996 Convention. Arrangements were required through ICACU for Ukraine to assume jurisdiction, with the transition of L to be carefully co-ordinated. The court reserved consideration of protective measures under article 11, enforceable in Ukraine under article 23. Directions in the substantive care proceedings were to be revisited and, where appropriate, suspended or discharged.

The proceedings were transferred from the Family Court sitting in Sheffield to the High Court for determination of jurisdiction. HHJ Jones had expressed a provisional view that L was habitually resident in England and recorded the parents’ concession. The High Court reconsidered the issue substantively and concluded that L remained habitually resident in Ukraine.