G (Children) (Habitual Resident), Re

For jurisdiction under Brussels IIR, habitual residence is determined by evaluating the child’s integration in a social and family environment at the date the court is seized. The assessment is fact-sensitive. Parental intentions are relevant but secondary to the child’s circumstances, and stability is required rather than permanence or residence for any fixed period.

A child may retain habitual residence in the original state where an intended short absence is prolonged by circumstances outside the primary carer’s control and the child has not become integrated in the new state. Jurisdiction may also be prorogued under Article 12(3) where acceptance is express or unequivocal and occurs after the respondent has understood the proceedings and relevant jurisdictional issue. Once unequivocally accepted, jurisdiction cannot be withdrawn. A stay requires proof that another forum is more appropriate and, if established, special circumstances favouring continuation in England.

The mother issued proceedings under the inherent jurisdiction concerning her five-year-old twins. The children had lived in England since 2014 and attended school there from September 2016. In November 2016 they travelled with the mother to the United Arab Emirates for a temporary period, intending to return by 5 January 2017.

The father subsequently obtained orders removing the children’s passports. The mother remained in the UAE with the children and issued proceedings in England on 2 March 2017 after obtaining legal advice. The father initially expressed support for their return and sought an adjournment to arrange it, but later challenged jurisdiction and relied on the UAE as the more appropriate forum.

The issues were whether the children remained habitually resident in England, whether jurisdiction had been prorogued under Article 12(3) of Brussels IIR, and whether the proceedings should be stayed on forum conveniens grounds.

The court held that it had jurisdiction and refused a stay.

1. Habitual residence. The relevant date was 2 March 2017, when proceedings were instituted. The question required an evaluation of all relevant circumstances, focusing on the children rather than the parents’ purposes and intentions. The children’s short-term trip to the UAE was intended to end by 5 January. Their continued presence resulted principally from the father’s unilateral removal of their passports. Nursery attendance in the UAE was arranged to occupy them, not to educate or integrate them there. Their school, medical, linguistic and social connections remained substantially linked to England. They had therefore not lost their English habitual residence.
2. Prorogation. The father was habitually resident in England, satisfying the substantial-connection requirement in Article 12(3)(a). After service and legal advice addressing jurisdiction, his solicitors’ letter of 13 April expressed clear support for the children’s return to England, accepted the substance of the mother’s application and sought an adjournment to arrange that return. The letter was incompatible with a jurisdictional challenge and amounted to unequivocal acceptance under Article 12(3)(b). The later qualification could not undo that acceptance.
3. Forum conveniens. The father did not establish that the UAE was the more appropriate forum. The UAE connection, family mediation and uncertain family-guidance file were insufficient, particularly as the mother’s continued presence there was involuntary and no substantive proceedings concerning the children were extant. Any welfare concerns could be examined in proceedings in England. The delay was substantially caused by the father’s conduct, and he could not rely on that delay to resist return.

The application for a stay was rejected. The court also rejected the submission that the children’s seven-month absence made summary return inappropriate.