EE & ME (Children) (Habitual Residence)

Habitual residence is a question of fact. The court must assess the child’s integration in a social and family environment without adding legal glosses or sub-rules that distort the factual inquiry. The same child-centred test applies under domestic law, the Hague Convention and Brussels IIA.

The assessment includes the duration, regularity, conditions and reasons for the child’s stay, family and social relationships, schooling and other features of the child’s life. For an infant or young child, the environment of the persons on whom the child depends is especially important. A move intended to be temporary may leave the child habitually resident in the former state. Jurisdiction under Article 8 may therefore coexist with alternative jurisdiction under Article 10 where removal was wrongful and consent is absent.

The father applied for orders concerning two children, aged nine and four, who had lived at different times in England and Wales and Latvia. In September 2015, the mother took the children to Latvia for medical investigations and left them with their maternal grandparents, while she returned to England with their older sister. The father commenced proceedings in February 2016.

The father relied on Articles 8 and 10 of Brussels IIA. He argued that the children were habitually resident in England and Wales when proceedings began or had been wrongfully removed from England and Wales. The mother argued that they remained habitually resident in Latvia and alternatively sought a possible transfer under Article 15. The issue was whether this court had jurisdiction.

1. Jurisdiction established. The court held that it had jurisdiction under Article 8 of Council Regulation (EC) 2201/2003 and, alternatively, under Article 10.
2. Habitual residence is a question of fact, not a legal concept. The court must avoid purported sub-rules or legal glosses that produce a result different from the factual inquiry. The test is the child’s integration in a social and family environment and is the same under Brussels IIA, the Hague Convention and domestic law.
3. The relevant circumstances include the duration, regularity, conditions and reasons for the stay and the family’s move, together with schooling, language, nationality and family and social relationships. The inquiry is child-centred. For a young child, particular weight may be given to the integration of the person or persons on whom the child depends.
4. The court applied the guidance in Re B (A Child) that the deeper the integration in the former state, the greater the pre-planning of the move, and the presence or absence of central family members may affect the speed with which habitual residence is acquired in a new state. Those are factual expectations, not glosses or sub-rules.
5. Although the children had spent much of their lives in Latvia, the mother’s return to England with all three children in 2014, her efforts to obtain permanent accommodation, the children’s schooling and medical registration in England, and the continued presence in England of their mother, father and older sister showed integration in England and Wales. The September 2015 move was intended to last only until medical investigations and the academic year ended. The children therefore remained habitually resident in England and Wales when proceedings were commenced.
6. Alternatively, the father had not consented to the children moving to Latvia. The 2007 statutory declaration was properly construed as applying only to E and to travel, not to relocation, and could not establish consent in respect of M. The Article 10 jurisdictional basis was therefore also made out.
7. The ruling determined jurisdiction only. The question whether to seek a transfer to Latvia under Article 15, and the welfare orders to be made if the case remained in England and Wales, were left for later determination.