BT & Anor, Re

Under the 1996 Hague Convention, jurisdiction to make protective measures concerning a child ordinarily depends on the child’s habitual residence. Habitual residence is a fact-sensitive question focused on the child’s degree of integration in the relevant social and family environment. Parental intention is relevant but cannot, by itself, establish habitual residence.

In exceptional circumstances a child might acquire habitual residence in a country where the child has never been present, but absence must be assessed against all the circumstances. A return order is not an order within section 1(1)(d) of the Family Law Act 1986. The inherent jurisdiction does not empower the court to compel a local authority or the English Central Authority to recover a child from abroad.

The applicants, the parents of a two-year-old child, applied under the inherent jurisdiction for an order described as a voluntary return order. The child had been born in Finland, later taken into care by the Swedish authorities, and remained in Sweden. The parents had travelled to England and Wales but the child had never been present there.

The parents argued that the child was habitually resident in England and Wales because they intended to bring her there, their own integration was sufficient, and her absence resulted from circumstances beyond their control. The central issues were whether the court had jurisdiction under the Family Law Act 1986 and the 1996 Hague Convention, and whether the proposed return order was legally available.

1. Application dismissed. The court had no jurisdiction in respect of the child and dismissed the application for want of jurisdiction.
2. Jurisdiction was governed by Article 5 of the 1996 Hague Convention, which confers jurisdiction on the authorities of the child’s habitual residence. None of the alternative jurisdictional bases relied upon by the parents was available.
3. Habitual residence required a factual assessment of whether the child had achieved a sufficient degree of integration in a social and family environment in England and Wales. The assessment was child-focused, although where an infant’s environment was shared with dependent parents their integration could be relevant. The child’s practical connection, relationships, residence, possessions, right of abode and durable ties were relevant considerations.
4. The possibility that a child may be habitually resident in a country never visited was left open. Even if that possibility existed, it depended on the facts. The suggested force majeure did not assist the parents: the child’s absence resulted from the lack of travel documents and her removal into care in Sweden following concerns about parental neglect.
5. The child remained in care in Sweden, where her physical, emotional and educational needs were being met. She had no practical connection or durable ties with England and Wales. The parents’ intention to bring her to England was insufficient to establish habitual residence.
6. A return order did not fall within section 1(1)(d) of the Family Law Act 1986. The court also had no power to compel a local authority to take the child into care or to recover her from a foreign jurisdiction, nor to compel ICACU to do so.

No order was made as to costs.

not stated in the judgment.