S (A Child), Re (Article 16 and 18 BIIa and Article 19 EU Service Regulation

Under the Brussels IIa Regulation, habitual residence is a factual inquiry into a child’s integration in a social and family environment. It concerns stability rather than permanence. No fixed period, permanent intention, complete integration or parental consent is required. Parental intention is relevant only insofar as it explains the child’s presence or departure.

Where proceedings concerning parental responsibility are brought in different Member States, the second court must stay its proceedings until the jurisdiction of the first court is established. Once valid service has occurred and sufficient time for a defence has been allowed, the court may proceed. The ordinary service period may be shortened where no injustice is caused.

The father applied under the inherent jurisdiction for declarations concerning his five-and-a-half-year-old son’s habitual residence and wrongful retention in Spain, and for the child’s return to England. The child had moved with his mother and half-sister from Spain to England in September 2016, attended school there and became integrated into the local community. The family travelled to Spain in summer 2017, but the mother then decided not to return with the child.

The father also initiated the 1980 Hague Convention process. After the English proceedings were issued, the mother lodged proceedings in Spain. The issues included which court was first seized, the effect of Brussels IIa and the EU Service Regulation, validity and timing of service, habitual residence, jurisdiction and the child’s interim welfare. The respondent did not attend.

1. First seizure and lis pendens. The English court was seized when the originating process was lodged on 7 September 2017, because the father had taken the steps required to effect service. The Spanish court was second seized. The proceedings concerned the same child, parental responsibility and substantially the same cause of action. Under Article 19 of the Brussels IIa Regulation (EC) No 2201/2003, the Spanish court should stay its proceedings until the English court’s jurisdiction was established.
2. Service. Email and ordinary airmail had not established effective service. Personal service in Spain on 3 October 2017, with English and Spanish documents, was valid. Although the ordinary period under the Family Procedure Rules and PD6B had not fully elapsed, the court could shorten time under FPR 4.1(3). Fourteen days was sufficient in the circumstances, given the mother’s Spanish lawyers, the translations and the absence of any response. The court could therefore proceed under Article 18 of Brussels IIa and Article 19 of the EU Service Regulation.
3. Habitual residence. Habitual residence is determined by the child’s integration in a social and family environment, assessed objectively and subjectively, comparatively and with regard to the child’s individual circumstances. Complete integration, a fixed period of residence and an intention to remain permanently are unnecessary. Stability, rather than permanence, is the relevant quality. The child’s residence may change quickly, and parental consent is not a legal precondition, although intention and consent may affect the quality of integration.
4. The child had become habitually resident in England by July 2017. His schooling, English language, friendships, football and family life showed substantial integration. His four-week return to Spain for an intended holiday did not undo that habitual residence by 23 August or 7 September. The English court therefore had jurisdiction under Article 8, supplemented by Article 10 because the child had been wrongfully retained in Spain. The retention breached the father’s rights of custody.
5. Interim welfare. The court applied section 1 of the Children Act 1989. Given the child’s age and the limited value of obtaining his views for an interim decision, it was unnecessary to interview him immediately. A return order was nevertheless required to restore direct and overnight contact with his father and to enable CAFCASS to assess the child and the relevant relationships. The return order did not determine the child’s medium- or long-term future.
6. The court made declarations concerning habitual residence, jurisdiction and wrongful retention, ordered the child’s return to England and Wales, and indicated that an Annex II certificate would be signed for enforcement in Spain. The court retained an open mind on the eventual welfare outcome.