S (Children)

Under Council Regulation 2201/2003 (BIIR), a consensual permanent move is not converted into wrongful retention merely because a parent later changes position. Article 10 preserves the former state’s jurisdiction only where removal or retention is wrongful. Article 8 looks to the child’s habitual residence when the court is seised. Habitual residence is child-centred and asks whether the child has some degree of integration in a social and family environment. Relevant considerations include stability, dependence on carers, reasons for the move, adult planning, integration in the former state and continuing links with it. Absence of a former primary carer may slow integration but does not prevent a change of habitual residence. Appellate interference with factual evaluation requires a compelling basis.

Three young children travelled with their parents from England to Libya in December 2017. The mother returned alone to England in January 2018, while the children remained in Libya with the father and his family. She applied to the High Court on 3 December 2018 for their summary return, relying on Articles 8 and 10 of Council Regulation 2201/2003. The High Court dismissed the application, finding no wrongful retention and that the children were habitually resident in Libya when the proceedings were issued. The mother appealed, challenging the factual findings, the assessment of credibility, the treatment of documentary evidence and the refusal to consider a late parens patriae ground. The central issues were whether wrongful retention occurred on 9 January 2018 and whether the children’s habitual residence had shifted by 3 December 2018.

Mr Justice Cobb gave the leading judgment. Baker LJ and Bean LJ agreed. The appeal was dismissed.

1. Appellate review and procedural fairness. The trial judge had properly directed herself on credibility, including the principle in R v Lucas [1981] QB 720. A trial judge may prefer one witness’s evidence on central issues despite finding dishonesty on both sides, where the evidence is assessed as a whole. The appellate court must respect the trial judge’s advantage in seeing and hearing the witnesses and should not interfere with factual findings, evaluations or inferences unless compelled by material error or serious injustice. A judgment need not address every item of evidence or submission if its reasoning adequately demonstrates how the material evidence was assessed. The remote participation arrangements caused no material unfairness; no special measures had been sought under the Family Procedure Rules 2010.
2. Wrongful retention. BIIR applies where the relevant country is outside the signatory states. Article 10 preserves the jurisdiction of the child’s former state where removal or retention is wrongful. The judge’s findings established a mutually consensual permanent move to Libya. The mother left freely, the father facilitated her travel, and she asked members of his family to care for the children. Those findings could not support a wrongful or repudiatory retention on 9 January 2018.
3. Habitual residence. Article 8 required the children’s habitual residence to be assessed at the date of seisin, 3 December 2018. Habitual residence means the place reflecting some degree of integration in the child’s social and family environment. The assessment is child-centred and may consider the reasons for the move, adult pre-planning, the child’s dependence on parents or other carers, the depth of integration in the former state, continuing links with it and the stability of the new environment.
4. The children had become substantially integrated into family and social life in Libya. Their mother’s absence slowed the process but did not prevent it. The children’s stable environment was Libya, so the English court lacked Article 8 jurisdiction.
5. The late parens patriae ground was refused because it had not been argued below. A nationality-based jurisdiction is rare and requires great caution because of international jurisdictional schemes, conflicting decisions, unenforceability and comity. In any event, the ground could not have affected the outcome.

• Court of Appeal (Civil Division). Appeal dismissed: S (Children) [2020] EWCA Civ 515.
• High Court of Justice, Family Division. Her Honour Judge Hillier, sitting as a Deputy High Court Judge, dismissed the mother’s application for the summary return of the children on 14 October 2019. The decision was unreported.