J v E (Habitual Residence)

Habitual residence is a factual question requiring a global assessment of whether the child has achieved a sufficient degree of integration in a social and family environment. The inquiry is child-focused and comparative where competing jurisdictions are advanced. Parental intention is relevant but not determinative. Stability, practical connections, prior integration, pre-planning, family relationships and the circumstances of the move may all be relevant.

Where jurisdiction exists, a stay on forum conveniens grounds requires the alternative forum to be clearly and distinctly more appropriate. In non-Convention return proceedings, return is determined by the child’s welfare, without an automatic or strong presumption of return. A summary return may nevertheless be ordered where necessary to enable welfare issues and assessments to be determined effectively.

The father applied for orders concerning his daughter, A, including her return to England and Wales. A had been taken by the mother from England to Zambia in March 2022. The mother accepted that A was habitually resident in England and Wales when she left, but maintained that A had acquired habitual residence in Zambia by the date of the father’s application.

The father’s original application was dismissed for want of jurisdiction by Arbuthnot J. The Court of Appeal allowed his appeal and remitted habitual residence for rehearing: [2023] EWCA Civ 659. The issues were whether A remained habitually resident in England and Wales, whether Zambia was the more appropriate forum, and whether A’s welfare required her return pending determination of the welfare dispute.

1. Jurisdiction. The court applied the test of whether, having regard to all relevant circumstances, A had achieved a sufficient degree of integration in a social and family environment in Zambia to be habitually resident there. The assessment was child-focused and comparative. A had some integration in Zambia, assisted by the mother’s strong connections and extended family, but that integration was insufficient.
2. A had been firmly rooted in England and Wales before the move. She had lived there throughout her life, had her family home and medical registration there, and had substantial relationships with both parents and family members. The trip to Zambia had involved return tickets, little luggage, no pre-planning for a permanent move, and continuing uncertainty about the parties’ future. The mother’s unilateral obstruction of contact with the father further undermined stability in Zambia. A therefore remained habitually resident in England and Wales on 23 June 2022.
3. Forum. Applying Spiliada principles, the mother had to show that Zambia was clearly and distinctly the more appropriate forum. She failed to do so. England and Wales had the stronger overall connection, existing proceedings and extensive evidence. There were no family welfare proceedings in Zambia, and a fact-finding hearing and welfare assessments could be conducted more effectively with both parents participating in England.
4. Return. A return under the inherent jurisdiction was governed by welfare, with A’s best interests paramount. There was no automatic presumption arising from the 1980 Hague Convention. The court’s task was narrower than a final determination of where A should live, but required sufficient inquiry to identify what her welfare required.
5. Although delay meant that return would cause disruption, return was necessary to assess and, subject to safeguards, promote A’s relationship with her father and to determine the allegation of sexual abuse and ensuing welfare issues. The mother had obstructed contact and could not reliably be expected to facilitate the assessments in Zambia. A return order was made, requiring return by midnight on 22 February 2024. Further case management directions were to be agreed, with a fact-finding hearing anticipated.

• Court of Appeal: Arbuthnot J’s dismissal of the father’s application for want of jurisdiction was overturned and the habitual-residence issue was remitted for rehearing: [2023] EWCA Civ 659.
• High Court (Family Division): The court found that A remained habitually resident in England and Wales, refused a stay, and ordered her return pending determination of the welfare dispute.