L (Children), Re

Habitual residence is a question of fact. The court must assess the child’s life, including the circumstances and environment in both the former and new countries, without imposing a prescribed analytical route.

A balance sheet may assist, but it must not replace the evaluative task of deciding the weight of each factor. Parental intention is relevant but not determinative. Stability, rather than permanence, is the relevant quality of residence.

On appeal, the court should respect the first-instance judge’s evaluation of evidence heard orally. Positive evidence of a child’s life abroad does not prevent a return order where the wider evidence establishes a significant welfare risk.

The appeals concerned two young children who had moved with their parents from England and Wales to Romania in February 2016. Following care and wardship proceedings, Francis J held on 2 December 2016 that the children remained habitually resident in England and Wales. On 15 December 2016 he ordered under the inherent jurisdiction that they be returned to England and Wales.

The mother and father challenged both decisions. They argued that the judge had undervalued the children’s integration into Romanian life, placed excessive weight on parental intention, failed to assess the position of the children’s primary carers, and conducted an inadequate welfare hearing. The central issues were whether the habitual-residence assessment was legally and factually sustainable and whether the return order was justified.

1. Habitual residence. The appeals against the finding of habitual residence were dismissed. Habitual residence is a question of fact, and the scope of the inquiry depends on the particular case. The judge must sufficiently consider the child’s old and new lives and the family circumstances, but the process must not become an unworkable obstacle course. The Court applied the guidance in Re J (A Child) [2017] EWCA Civ 80.
2. A balance-sheet analysis can be useful, but it is not an end in itself. The judge must decide what weight each factor carries. Treating every factor as having equal value risks losing the necessary evaluative judgment. The Court adopted and applied the warning in Re F (A Child) [2015] EWCA Civ 882.
3. The judge was entitled to find that the children’s nine or ten months in Romania had not created a sufficiently stable and integrated new habitual residence. The Romanian evidence showed schooling, medical registration, good physical care and developing social connections. However, the children’s previous life in England, their mother and sister remaining there, the lack of pre-planning, the parents’ stated intention that the move was a holiday, and the unsettled pattern of care and parental travel were also material. Parental intention was relevant but not determinative, consistently with the approach described in KL [2013] UKSC 75.
4. Welfare and return. The welfare appeal was also dismissed. The phrase “plainly wrong”, used in the welfare judgment, was not read as imposing an incorrect appellate threshold. In context, the judge meant that there was no insurmountable obstacle to return. He had ample evidence that the children might be at significant risk of harm while remaining in the Romanian environment, notwithstanding the positive Romanian reports. Refusing an adjournment for oral evidence was also within the judge’s evaluative judgment, given the resulting delay and the father’s failure to attend despite a direction to do so.

The appeals were unanimously dismissed.

1. Court of Appeal (Civil Division) On 9 May 2017, the parents’ appeals against the habitual-residence finding and the return order were dismissed: [2017] EWCA Civ 441.
2. High Court of Justice, Family Division Francis J held on 2 December 2016 that the children were habitually resident in England and Wales, and on 15 December 2016 made an order under the inherent jurisdiction for their return to England and Wales.