Re X (Care Proceedings: Jurisdiction and Fact Finding) (Rev 1)

Under Council Regulation 2201/2003, jurisdiction in parental-responsibility proceedings depends on the child’s habitual residence when the court is seised. A foreign court’s declaration does not determine the English court’s jurisdiction under English law.

Habitual residence is a child-focused factual inquiry. Integration in the social and family environment, stability, and parental intention may be relevant, but no fixed period of residence or intention to remain permanently is required.

Where England has jurisdiction but another state is involved, forum conveniens is assessed under Spiliada Maritime Corporation v Consulex. In family proceedings, the child’s welfare is important but is not paramount for that issue.

The court may discontinue a part-heard fact-finding exercise where continued investigation offers no sufficient welfare advantage and would be disproportionate.

The proceedings concerned X, a 15-year-old American citizen who had lived in England with her stepmother after travelling from the United States with her father. Private law proceedings were followed by care proceedings after concerns arose about X’s welfare and the adults’ care of her.

Jurisdiction was disputed because a Tennessee court had declared Tennessee to be X’s habitual residence and home state. The English court had to determine its own jurisdiction, consider forum conveniens, and address the relevance of the foreign orders and the 1980 Hague Convention.

A fact-finding hearing began but was interrupted by the Covid-19 pandemic, X’s deteriorating mental health, and the parties’ agreement that she should return to the United States to live with her half-sister. The central issues were whether the English court could make substantive welfare orders and whether continuing fact-finding was necessary and proportionate.

1. Jurisdiction and habitual residence. The court held that it had substantive jurisdiction under Article 8 of Council Regulation 2201/2003. X was habitually resident in England and Wales at all relevant times. The determination required close scrutiny of the circumstances of X’s life, including her stability, integration, wishes, and the parties’ intentions. The Tennessee court’s contrary declaration was not binding on the English court, which had to determine its own jurisdiction under English law.
2. Forum. No party sought a stay, but the court concluded that England was the most convenient forum. The child’s habitual residence was the jurisdiction with the strongest claim, although that factor was not conclusive. X’s professional support, the availability of evidence and representation, and the parties’ submission to the English jurisdiction were relevant. Her welfare was an important consideration, but the paramountcy principle in section 1 of the Children Act 1989 did not apply to the forum question.
3. Foreign orders and return proceedings. The Tennessee orders did not alter the English court’s jurisdiction. No application had been made under the 1980 Hague Convention or the inherent jurisdiction for summary return. In the circumstances, the Convention had no operative application because no party alleged a wrongful removal or retention or asserted that X was habitually resident in the United States at the relevant time.
4. Discontinuance of fact-finding. Rules 1.1, 1.4 and 4.1(2)(l) of the Family Procedure Rules 2010 empowered the court to exclude an issue and bring a part-heard fact-finding inquiry to an end. By June 2020, continued fact-finding was unlikely to assist X, was no longer required for the statutory threshold because no public law order would be made, and risked destabilising her placement. The court therefore discontinued the hearing and made findings only to the extent supported by the parties’ written concessions.
5. Final order. The court ordered that X live with her half-sister and her husband in the United States, discharged the child arrangements order in favour of the stepmother, and permitted arrangements for X’s return.