L v M (Rev 1)

Under article 10 of Brussels II Revised, jurisdiction may be retained in England and Wales after a child has been wrongfully removed or retained in a non-member state. A repudiatory retention requires an objectively identifiable act or statement denying the other parent’s custody rights. Habitual residence is a child-focused question of fact. The court must assess the child’s integration in the relevant social and family environment, with parental intention relevant but not determinative. A parent may unilaterally change a child’s habitual residence. For very young children, integration may develop rapidly and stability, rather than permanence, is required.

The father applied under the inherent jurisdiction for the return of twin children to England. The children were born in England, travelled to China with both parents in December 2017, and remained there after the parents separated. The mother later moved to Hong Kong, while the children lived in China with their maternal grandparents and nannies.

The principal issues were whether article 10 of Brussels II Revised applied where the alleged retention occurred in a non-member state, when any wrongful retention occurred, where the children were habitually resident at the relevant date, and whether the court had jurisdiction to determine the father’s application.

1. Article 10. The court was bound by In re H (Children) (Reunite International Child Abduction Centre intervening) [2014] EWCA Civ 1101; [2015] 1 WLR 863. That authority had considered the purpose and policy of article 10 and was not decided per incuriam. Article 10 therefore applied notwithstanding that the children were in China, a non-member state. A reference to the CJEU was refused.
2. Wrongful retention. The parents had agreed that the children would remain in China for a period, although the duration was unclear. The children were not wrongfully removed when they left England. The mother’s formal indication at the end of March 2018 that she wanted a divorce and had instructed lawyers was an objectively identifiable act repudiating any previous understanding that she and the children would return. That was the relevant date for article 10.
3. Habitual residence. The test was child-focused and factual. The relevant considerations included integration in the social and family environment, the practical connection with the country, the stability rather than permanence of residence, the role of the primary carer, parental intention, and the possibility of unilateral change. The children were nine months old, had spent their lives with the mother as primary carer, and by the end of March were living in China with their mother, maternal grandparents and nannies. They were integrated into that environment. Their English home, nationality, registration with an English GP and pre-school place did not outweigh their connections with China.
4. The children were habitually resident in China at the end of March 2018 and, alternatively, in October 2018. The English court therefore had no jurisdiction. The application was dismissed in substance. The judge added, obiter, that returning the children to England would not have served their best interests, although re-establishing a close relationship with the father was strongly desirable.