J (A Child) (Finland)(Habitual Residence)

A child’s habitual residence is a factual question determined by whether the child has achieved some degree of integration in a social and family environment. The court must consider relevant features of both the child’s former and new lives. No prescribed checklist, gloss or sub-rule applies.

A lawful, permanent and carefully planned relocation may permit habitual residence to change quickly, particularly where a young child moves with the primary carer into a supportive and familiar family setting. Under Article 8 of Council Regulation (EC) No 2201/2003, jurisdiction ordinarily belongs to the state of habitual residence when proceedings are commenced. Article 9 preserves the former state’s jurisdiction over access modifications only for three months following a lawful move.

A father appealed against a Family Court determination that the English court lacked jurisdiction over new proceedings concerning his five-year-old son. The child had moved lawfully from England to Finland with his Finnish mother under an order permitting permanent relocation. The father’s application to vary contact arrangements and stay the earlier order was lodged no earlier than April 2015.

The Family Court found that the child had been habitually resident in Finland from the date of relocation. Although the judge considered the child’s circumstances in Finland, she treated his former English circumstances as irrelevant. The principal issue on appeal was whether that approach invalidated the finding of habitual residence and required a rehearing.

1. Appeal dismissed. The Family Court’s analysis was deficient because it failed to place the relevant features of the child’s former life in England into the overall assessment. Nevertheless, consideration of all the evidence inevitably established that the child was habitually resident in Finland by April 2015. A rehearing was unnecessary.

2. Habitual residence corresponds to the place reflecting some degree of the child’s integration in a social and family environment. It is an essentially factual and individual inquiry. The fact-finder must have in mind relevant circumstances in both the old and new countries, but the necessary scope and detail depend on the particular case. The factors identified in earlier authorities are not a prescribed checklist or legal sub-rules.

3. Habitual residence may be acquired quickly and, depending on the facts, even within a single day. The child’s lifelong connections with England, continuing relationship with the father and other relatives, and any contact difficulties could have slowed integration. They did not outweigh the circumstances supporting integration in Finland.

4. The child was very young and moved with his established primary carer under a court-sanctioned, permanent and carefully planned arrangement. They moved into the Finnish maternal grandparents’ home, the child knew those grandparents, spoke Finnish, and quickly settled into nursery. The mother was returning permanently to her native country and had substantial family support. By April 2015 the requisite degree of integration in Finland had plainly been achieved.

5. Under Article 8 of Council Regulation (EC) No 2201/2003, jurisdiction belonged to Finland because the child was habitually resident there when the English court was seised. Article 9 did not preserve English jurisdiction: more than three months had elapsed since the lawful move. The father could not enlarge the appeal by advancing alternative jurisdictional bases not argued before the Family Court.

6. A judgment’s failure expressly to recite the governing test does not itself invalidate the decision. The question is whether the judge’s substantive approach accords with the law. Lord Justice David Richards agreed.

1. Court of Appeal (Civil Division): The father’s appeal was dismissed. Despite flaws in the Family Court’s reasoning, the child was inevitably habitually resident in Finland by the time the English proceedings commenced: [2017] EWCA Civ 80.

2. Family Court at Guildford: Her Honour Judge Cushing held on 5 January 2016 that the English court lacked jurisdiction because the child was habitually resident in Finland. That determination was upheld.