R (A Child)

A child’s habitual residence is determined by the child’s degree of integration in a social and family environment, assessed from all the circumstances. Stability, rather than permanence or a fixed duration, is required. Parental intention is relevant but not determinative.

Jurisdiction under Council Regulation (EC) No 2201/2003 is assessed when the court is seised. Where the child was habitually resident in another Member State, the courts of that State have exclusive jurisdiction. The child-abduction exception does not preserve jurisdiction unless there has been a wrongful removal or retention. Knowledge of the child’s country, village or an address sufficient to commence proceedings may establish knowledge of the child’s whereabouts.

The father applied under the inherent jurisdiction for orders requiring the mother to return R, aged six, from Spain to England. The parents had lived peripatetically in several countries. R had lived with his mother and maternal grandparents in Spain since 2017, attended school there and became integrated into the local community.

An earlier consent order had declared R habitually resident in England and Wales, but the present court found that order to have been made on a materially misleading factual basis and discharged it. The central issues were R’s habitual residence when the proceedings were issued, whether the father could rely on the child-abduction jurisdiction, and whether he lacked knowledge of R’s whereabouts.

1. Habitual residence. The court followed the approach summarised in AB v EM (Jurisdiction Foreign Custody Order) [2020] EWHC 549 (Fam). The question was child-focused and depended on the degree of integration in the relevant social and family environment. R had lived in Spain with his primary carer and grandparents, attended school there and developed social and family connections. By January 2018, and again by June 2020, Spain was his habitual residence.
2. The remaining links with England, including British nationality, benefits, banking arrangements, possessions and the absence of permanent Spanish immigration status, were insufficient to establish habitual residence in England. The earlier interim declarations could not determine habitual residence at a later date and had been made without a proper factual basis. They were discharged.
3. Jurisdiction. Under article 8 of Council Regulation (EC) No 2201/2003, jurisdiction was determined when the present application was issued. Since R was habitually resident in Spain at that date, the Spanish courts had exclusive jurisdiction in matters of parental responsibility and the English court could not entertain the application.
4. Child abduction. Article 10 did not assist the father. R had returned to Spain in October 2018 with both parents’ consent, there was no settled agreement requiring his return to England, and the father had not established a wrongful removal or retention. Even if there had been wrongful retention, R had lived in Spain for more than a year and was settled there, applying the physical and emotional elements identified in Cannon v Cannon [2004] EWCA Civ 330, [2005] 1 FLR 169.
5. Whereabouts. Adopting R v P [2017] EWHC 1804 (Fam), the purpose of article 10 was to prevent time running where a parent lacked sufficient information to launch return proceedings. The father knew the country, village, workplace and addresses and therefore knew R’s whereabouts for that purpose.
6. The court concluded that it had no jurisdiction. The application was dismissed.