CL v AL

Habitual residence is a question of fact. A child may lose habitual residence in one country before acquiring it in another, although that will be unusual. The court must assess the child’s integration, the family’s plans and the circumstances of the move. A judge may admit and consider fresh evidence after judgment, particularly in a children case, but the evidence must genuinely justify reconsideration. Evidence that merely confirms matters already anticipated, or reflects a change in circumstances after the decision, is insufficient. A party cannot obtain a second determination by presenting such material as fresh evidence where further delay would harm the children’s welfare.

The judgment addressed two matters arising after an ex tempore judgment concerning the arrangements for two brothers, IL and JL. The mother challenged the adequacy and alleged inconsistencies in the earlier reasons, particularly the findings on habitual residence and the assumption that she might be unable to live permanently in the United Kingdom.

She also applied to admit alleged fresh evidence, including the children’s reactions after judgment, alleged pressure by the father, and a pending visa application. The central questions were whether the earlier reasons were defective and whether the subsequent material required the court to reopen or alter its decision.

1. Habitual residence. The court reaffirmed that habitual residence is a question of fact. Applying Re B (A child) [2016] UKSC 4, it accepted that it may be unusual, but is not impossible, for a child to lose habitual residence in one country without acquiring it in another. The boys lost habitual residence in Australia when the family left on an agreed plan to establish a new life in Scotland. Their short and itinerant stay in Scotland did not give them sufficient social integration there.
2. The boys were present in England but had not yet acquired habitual residence here by 6 February 2016. The court nevertheless had jurisdiction on the basis of their presence. By the relevant later date, both boys had settled in this jurisdiction. JL had acquired habitual residence here when he left for Australia under an order, and had not acquired habitual residence in Australia before the father’s later application because his life there remained unsettled.
3. The court found no inconsistency in its earlier reasoning. The endorsement of living together with both parents in the United Kingdom described the ideal arrangement, but the decision had properly proceeded on the basis that the mother might not obtain the immigration status necessary to live here.
4. Fresh evidence. The court accepted, by reference to Nottinghamshire and City of Nottingham Fire Authority v Gladman Commercial Properties [2011] EWHC 1918 (Ch), Re L and B (Children) [2013] UKSC 8 and Ladd v Marshall [1954] EWCA Civ 1, that it had discretion to admit and consider fresh evidence after judgment. The evidence relied upon did not meet that threshold. The children’s post-judgment reactions, the father’s open-ended questions, and the mother’s visa application either confirmed matters already assessed or were events the court had anticipated.
5. The application was therefore a second attempt to revisit the merits. Further delay, including expert assessment of IL’s wishes, would be contrary to the welfare interests of both boys. The court refused permission to appeal and refused a stay because the proposed appeal had no reasonable prospects of success and delay would be damaging. The mother was directed to surrender custody of JL by 9 am the following morning in Australia, unless the parents agreed otherwise in writing.

The judgment followed an ex tempore judgment delivered on 11 August 2017 and earlier decisions concerning jurisdiction and the children’s arrangements. The court reconsidered its reasons and the mother’s fresh-evidence application, but declined to alter the decision. Permission to appeal and a stay were refused.