Hillingdon Council v SM & Ors

The court may dispense with service on an automatic party where a very high degree of exceptionality is established, while retaining that person as a party. Habitual residence is determined as a factual, child-focused inquiry, principally by assessing the child’s integration in a social and family environment. A child may become habitually resident in the jurisdiction despite a recent arrival, limited prior connections and continuing family ties abroad. Where no person in the jurisdiction can exercise parental responsibility and the child is consequently likely to suffer significant emotional harm, the threshold for a care order may be met. The child’s welfare remains paramount, and the order made must address the child’s practical welfare needs.

The local authority applied for a care order concerning SK, an Afghan national and unaccompanied asylum-seeking child who arrived at Heathrow in November 2015. His father was said to have died and his mother’s whereabouts were unknown. The central issues were whether service on the mother should be dispensed with, whether SK was habitually resident in England and Wales when proceedings were issued, whether the threshold criteria were met, and what order best served his welfare.

1. The mother was an automatic party under rule 12.3 of the Family Procedure Rules 2010. Applying the test in M v F [2011] EWCA Civ 273, dispensing with service required a very high degree of exceptionality. That test was satisfied because enquiries through the Red Cross were likely to expose the mother, a lone parent in Afghanistan, to grave danger. Service was dispensed with, but the mother remained a party.
2. Habitual residence was a question of fact. Applying the principles stated in A v A (Children: Habitual Residence) [2013] UKSC 60, the court assessed SK’s integration in his social and family environment, including his settled foster placement, schooling, friendships, English-language progress and expressed wish to remain in the jurisdiction. Those matters outweighed his continuing family connections in Afghanistan. He was habitually resident here when proceedings were issued.
3. The threshold criteria were satisfied. Without a person able actively to exercise parental responsibility, SK was likely to suffer significant emotional harm, particularly given his vulnerable age.
4. Under section 1(3) of the Children Act 1989, SK’s welfare was paramount. His settled and successful foster placement met his welfare needs, while a change would be detrimental. A final care order was the only order that secured his welfare and enabled the local authority to exercise parental responsibility.
5. The care plan was approved subject to amendment requiring support for SK when considering whether to locate or contact his mother. The immigration application remained a matter for the responsible immigration authorities.

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