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

Habitual residence requires a global factual assessment of whether a child has achieved sufficient integration in a sufficiently stable social and family environment. Some degree of integration alone is insufficient. The assessment must compare relevant connections with the old and new States, including the circumstances of those caring for a young child. Whether an application falls within Part I of the Family Law Act 1986 depends on its substance, including the applicant’s supporting statements. An application seeking care or contact orders may qualify despite being framed as an application for return under the inherent jurisdiction. Where habitual residence changes from a Contracting State to a non-Contracting State, article 5 of the 1996 Hague Child Protection Convention ceases to apply. National jurisdiction under the Act may nevertheless continue, determined by habitual residence at the date of the application.

The father and mother lived in England with their young daughter, A, who was habitually resident there. They travelled to Zambia, a non-Contracting State to the 1996 Hague Child Protection Convention, for an intended short visit. The father returned to England, but the mother remained with A and wrongfully retained her there. The father applied for A’s return under the inherent jurisdiction and described proposed arrangements for her care and contact with him in his supporting statements.

Arbuthnot J dismissed the application on 22 December 2022. She found that A was habitually resident in Zambia both when the father applied and at the final hearing. She also treated the application as seeking only a bare inward return order outside the Family Law Act 1986, and concluded that article 7 of the Convention did not apply to retention in a non-Contracting State. The father appealed the habitual-residence findings and the Convention rulings. The mother maintained that the application fell outside the Act. The central questions became whether the habitual-residence analysis was legally adequate and whether the substantive relief sought engaged the Act’s national jurisdiction provisions.

Appeal allowed unanimously. The case was remitted for a rehearing of A’s habitual residence at the date of the father’s application.

1. Habitual residence was a factual question requiring consideration of all relevant circumstances. The formulation referring to some degree of integration was shorthand for that inquiry, rather than a sufficient test by itself. The court had to assess sufficient integration and the stability of residence. For an infant, the environment and integration of those on whom the child depended were relevant. Parental intentions were among the relevant factors (paras 41–45).
2. The inquiry required comparison of the child’s connections with the old and new States. Relevant expectations included the depth of integration in the old State, the extent of adult planning and whether central members of the child’s life had moved or remained behind. The judge had concentrated almost exclusively on integration in Zambia. She had undertaken no adequate comparison with A’s previous and continuing connections with England, and had omitted the mother’s uncertain intentions concerning South Africa or a return to England. These defects justified appellate intervention despite the limited appellate role concerning habitual-residence findings. Although the father’s case appeared strong on paper, oral evidence might again be required, so the court did not substitute its own finding (paras 46–48, 69–73).
3. Article 5 of the 1996 Hague Child Protection Convention applied where the child was habitually resident in a Contracting State. It ceased to apply following a change of habitual residence to a non-Contracting State. National jurisdiction could then be retained. Under sections 2, 3 and 7 of the Family Law Act 1986, jurisdiction for the relevant Part I orders depended on habitual residence at the date of the application. Consequently, habitual residence in England and Wales at that date would establish jurisdiction despite a subsequent change to Zambia (paras 49–51, 65–68).
4. The application fell within section 1(1)(d) of the Act and very probably section 1(1)(a). Its substance included orders for care and contact, including the alternative placement of A with the father. The application’s form did not confine it to a bare return order. Consistently with H v R, the supporting statements had to be considered. This distinguished the bare orders examined in A v A (paras 60–62, 75–76).
5. It was unnecessary to determine the relevant date under article 5, the scope of article 7 or the Convention’s effect on inherent jurisdiction to make bare return orders. A finding concerning habitual residence at the November hearing was also unnecessary to determine jurisdiction in this case. The rehearing was to take place before a different judge nominated by the President of the Family Division, subject to an agreed welfare resolution (paras 4, 67, 74, 77–78).

• Court of Appeal (Civil Division): In [2023] EWCA Civ 659 , allowed the father’s appeal unanimously and remitted the issue of habitual residence at the date of his application for rehearing before a different judge nominated by the President of the Family Division.
• High Court, Family Division: Arbuthnot J dismissed the father’s application on 22 December 2022 for lack of jurisdiction, finding that the child was habitually resident in Zambia at the application date and final hearing, and treating the relief sought as outside the Family Law Act 1986.