Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention)

Habitual residence is a factual question requiring a global and comparative assessment of all relevant circumstances. A finding that a child has achieved some degree of integration in a new state is not, by itself, sufficient. The court must also consider the child’s previous and continuing links with the former state, the stability of the new residence, pre-planning, and whether central members of the child’s life remain behind.

Where the 1996 Hague Child Protection Convention does not apply after a child’s habitual residence changes to a non-Contracting State, jurisdiction under the Family Law Act 1986 is determined by the child’s habitual residence on the date of the application. Whether an application falls within that Act depends on substance, including the relief sought in supporting evidence, rather than the form used.

The father applied for A’s return from Zambia after the mother retained her there following a short family trip. The High Court held that A had become habitually resident in Zambia before the application and dismissed the proceedings for want of jurisdiction.

The father appealed. He contended that the judge had applied an unduly narrow habitual-residence test, had failed to compare A’s links with England and Zambia, and had wrongly treated his application as a bare inherent-jurisdiction return application outside the Family Law Act 1986.

The central issues were whether A was habitually resident in England and Wales on the application date, whether the application sought a Part I order, and the resulting basis of jurisdiction.

1. Appeal allowed and remitted. The judge’s finding that A was habitually resident in Zambia could not stand. The case was remitted to a different judge for a rehearing of A’s habitual residence at the date of the father’s application.

2. Habitual residence is a question of fact requiring an evaluation of all relevant circumstances. The formula that a child has achieved some degree of integration in a social and family environment is a shorthand description, not a self-contained test. For an infant, the court must assess the integration of the person on whom the child is dependent, but must also carry out a comparative assessment of the child’s connections with the former and alleged new states.

3. The judge had wrongly treated some degree of integration in Zambia as sufficient. Her analysis concentrated almost entirely on Zambia and did not compare A’s former and continuing links with England and Wales. It also omitted material matters, including the intended short duration of the trip, the absence of pre-planning, the paternal family and home remaining in England, and the mother’s uncertain intentions about living in Zambia, South Africa or England. The Court of Appeal did not determine habitual residence itself because the parties had given oral evidence and a focused rehearing might be required.

4. If A was habitually resident in England and Wales on the application date, the English court had jurisdiction even if she later became habitually resident in Zambia. In that event, article 5 of the 1996 Hague Child Protection Convention would cease to apply, and jurisdiction fell to be determined under the Family Law Act 1986, for which the relevant date is the application date. The court therefore did not decide the relevant date under article 5 or the scope of article 7.

5. The father’s application was within the Act. Although made on a form for inherent-jurisdiction relief and seeking return, his statements also sought substantive care and contact orders. The substance of the application, rather than its form, brought it within section 1(1)(d), and probably section 1(1)(a), of the Act. The application was therefore distinguishable from the bare inward return order considered in A v A [2014] AC 1.

• Court of Appeal (Civil Division): Allowed the father’s appeal and remitted the issue of habitual residence at the application date for rehearing: [2023] EWCA Civ 659.
• High Court of Justice, Family Division: Arbuthnot J dismissed the father’s application on 22 December 2022 after finding that A was habitually resident in Zambia and that England and Wales lacked jurisdiction.