AG and AB (Children)

For jurisdiction under Council Regulation (EC) 2201/2003, a child’s habitual residence cannot be established under Article 13 merely because it cannot be established in a Member State. The question is whether it can be established anywhere. Where the Regulation does not confer jurisdiction, Article 14 permits the court to apply residual domestic rules. Under sections 2(1) and 3(1) of the Family Law Act 1986, the English court may therefore have jurisdiction to make a section 8 order where the child is present in England and Wales and is not habitually resident in the United Kingdom or a specified dependent territory. Jurisdiction does not require the court to make an order. The court may refuse substantive relief where the children’s welfare and the existence of proceedings abroad make that appropriate.

The father appealed out of time against an order declaring that the parties’ twin children were habitually resident in Canada, that the English court lacked jurisdiction, and that an earlier prohibited steps order should be discharged. The children had spent their lives in Canada and had been in England for about ten days at the relevant date, following travel through France and Morocco. The parents disputed whether the trip represented permanent relocation or a temporary visit during the mother’s maternity leave.

The appeal raised the correct approach to habitual residence, the effect of Articles 8, 13 and 14 of Council Regulation (EC) 2201/2003, and whether residual jurisdiction existed under the Family Law Act 1986. It also concerned whether any useful order should now be made given the parties’ ongoing proceedings in Canada.

1. Habitual residence. The judge below applied the correct legal principles. His references to permanence did not impose an impermissibly high threshold. He was entitled to consider the parents’ intentions alongside the factual circumstances, including the limited duration and peripatetic nature of the stay, and to rely on his findings about credibility. His conclusion that the children were not habitually resident in England and Wales necessarily reflected a finding that they remained habitually resident in Canada.
2. Regulation jurisdiction. Article 13 applies where the child’s habitual residence cannot be established anywhere, not merely where it cannot be established in a Member State. Article 13 therefore did not confer jurisdiction because the children were habitually resident in Canada. Article 8 likewise did not apply.
3. Residual domestic jurisdiction. The court disagreed with the restrictive interpretation of section 2(1)(b) of the Family Law Act 1986. The correct sequence was to ask whether jurisdiction existed under the Regulation or the 1996 Hague Convention and, if not, whether the condition in section 3 was satisfied. Article 14 of the Regulation contemplated such residual domestic rules. Because the children were present in England and Wales and were not habitually resident in the United Kingdom or a specified dependent territory, the court had jurisdiction to entertain an application for a section 8 order.
4. Jurisdiction did not require the court to make an order. Section 1(5) of the Children Act 1989 required consideration of whether making an order would be better for the children than making no order.
5. Although the judge below had wrongly declared that the court lacked jurisdiction, it was inconceivable that he would have continued the prohibited steps order. He would have allowed the mother and children to return to Canada. Given the passage of time and the Canadian proceedings, this court would in any event have declined to make a substantive order or order a retrial. The appeal was dismissed so far as it challenged discharge of the prohibited steps order.

• Family court at Guildford: HH Judge Nathan declared that the children were habitually resident in Canada, that the court lacked jurisdiction, and discharged the prohibited steps order. The order was dated 2 August 2016, following the judgment delivered on 2 June 2016.
• High Court (Family Division): The appeal was dismissed. The court held that the lower court had residual jurisdiction, but that the discharge of the prohibited steps order was correct and no retrial or substantive order should be made.