In the matter of B (A child)

A child’s established habitual residence is lost when the child achieves the requisite degree of disengagement from the old social and family environment. Integration in the new environment is highly relevant to that assessment. A parent’s settled intention to relocate is only one factor and has no dispositive effect.

Although a child can have no habitual residence, that situation should be exceptional. Where two reasonable interpretations are available, the interpretation which avoids such a jurisdictional gap better serves children’s interests. The inquiry remains child-focused and fact-sensitive, addressing all the circumstances rather than applying presumptions or rigid sub-rules.

B had lived in England throughout her first five years. The respondent, her biological and sole legal parent, lawfully and secretly took her to Pakistan to make a new life. Nine days later the appellant, who had acted as B’s other parent but had neither legal parenthood nor parental responsibility, commenced proceedings under the Children Act 1989.

Hogg J held in [2014] EWHC 3017 (Fam) that B lost her English habitual residence immediately upon departure. The Court of Appeal dismissed the appellant’s appeal in [2015] EWCA Civ 886. Both courts also declined to exercise the High Court’s nationality-based inherent jurisdiction.

The central issue was whether, under the modern European concept of habitual residence, B remained habitually resident in England when the proceedings began.

By a majority of three to two, the appeal was allowed. Lord Wilson delivered the leading judgment, with which Lady Hale and Lord Toulson agreed. Lord Sumption and Lord Clarke dissented.

1. A child’s habitual residence reflects a degree of integration in a social and family environment. The inquiry is child-focused and depends on all the circumstances. Parental purposes and intentions are relevant but are not dispositive. Lady Hale and Lord Toulson described the ultimate determination as a mixed question of fact and law: the concept is legal, while its application is factual.

2. The modern concept makes it highly unlikely, although conceivable, that a child will lose an established habitual residence before acquiring another. The old residence is lost when the child achieves the requisite degree of disengagement from that environment. The degree of integration achieved in the new state is highly relevant. The settled-intention approach stated in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 should no longer be regarded as correct because it gave parental intention a dispositive effect.

3. The assessment must remain factual and free from rigid glosses. Relevant expectations include the depth of the child’s integration in the old state, the extent of arrangements made for daily life in the new state, and whether important members of the child’s life moved or remained behind.

4. B retained habitual residence in England when proceedings began. She had been in Pakistan for only nine days, had no independent home or school place there, spoke little Urdu and retained substantial personal, family and practical links with England. Those circumstances outweighed the lawfulness and planned permanence of the move. The English court therefore had jurisdiction, and the appellant’s application under the Children Act 1989 was to proceed to substantive determination.

5. It was unnecessary to decide whether the nationality-based inherent jurisdiction should have been exercised. The majority nevertheless rejected any rigid requirement that the circumstances must be “dire and exceptional” or at the extreme end of the spectrum. The court should exercise caution because of international jurisdictional schemes, possible conflicting decisions and enforceability, but the ultimate question is whether the British child requires protection.

6. Lord Sumption, with whom Lord Clarke agreed, would have dismissed the appeal. They regarded the loss and acquisition of habitual residence as separate factual questions, considered an intervening period without habitual residence legally permissible, and would not have disturbed the concurrent findings below.

1. United Kingdom Supreme Court: In [2016] UKSC 4, the court allowed the appeal by a majority of three to two. It held that B remained habitually resident in England when the proceedings commenced, so the application under the Children Act 1989 could proceed.
2. Court of Appeal: In [2015] EWCA Civ 886, the court dismissed the appellant’s appeal. It upheld the conclusion that B had lost her English habitual residence and declined to exercise the nationality-based inherent jurisdiction.
3. High Court: In [2014] EWHC 3017 (Fam), Hogg J dismissed both applications. She held that B lost her English habitual residence upon removal to Pakistan and that the circumstances did not justify exercising the inherent jurisdiction.