London Borough of Hillingdon v DS & Ors

Habitual residence is a question of fact, requiring consideration of the child’s degree of integration in a social and family environment. The assessment is highly fact-sensitive and may include parental planning, the child’s intentions, existing relationships, care arrangements and the stability of the proposed move.

In exceptional circumstances a child may have ceased to be habitually resident in one state without acquiring habitual residence in another. Where habitual residence cannot be established and the other jurisdictional gateways do not apply, Council Regulation (EC) No 2201/2003 confers jurisdiction on the courts of the state where the child is present.

Two British children, aged 13 and 10, arrived in the United Kingdom from Pakistan unaccompanied. Their mother remained in Pakistan and consented to their remaining in foster care in the United Kingdom. Their father, living in Holland, did not seek to care for them. The local authority applied for care orders.

The principal issues were whether the children were habitually resident in Pakistan or the United Kingdom when proceedings were issued, and, if not, whether jurisdiction arose under Article 13 of Council Regulation (EC) No 2201/2003. The court also considered threshold and welfare.

1. Jurisdiction. The court had jurisdiction under Article 13 of Council Regulation (EC) No 2201/2003. Article 12 did not apply because the father had not accepted the jurisdiction when the court was seised.
2. Habitual residence. Whether a child is habitually resident is a question of fact requiring an assessment of integration in a social and family environment. The assessment is highly fact-sensitive. The court applied the approach described in A v A (Children: Habitual Residence) [2013] UKSC 60 and considered the observations in Re B [2015] UKSC 4.
3. The children had lost their habitual residence in Pakistan by the date of issue. Their planned move, their mother’s intention that they remain in the United Kingdom, and the absence of any return or care arrangements supported that conclusion.
4. They had not yet acquired habitual residence in the United Kingdom when proceedings were issued. Although they had been in foster care and attending school for several months, their placement remained precarious, they had no identified relatives or established family connections here, and essential enquiries concerning their circumstances and future remained unresolved. The exceptional facts meant that neither child had an established habitual residence at the relevant date.
5. The threshold under section 31 of the Children Act 1989 was satisfied. The children had suffered, and were likely to suffer, significant emotional harm and neglect after being abandoned in the United Kingdom without care, accommodation, income or support.
6. The children’s welfare required care orders and long-term foster placement with their current carers. The arrangements were consistent with their wishes and provided stability and security, while supporting continuing contact with their birth family.

First instance decision. No prior appellate decision is stated in the judgment.