CB (Habitual Residence: Child Born and Present Abroad), Re

A child cannot acquire habitual residence in a country in which she has never been physically present. Habitual residence remains a factual inquiry, focused on the child’s integration into a social and family environment, including the stability and quality of the residence. Where a child is habitually resident abroad, transfer under Article 9 of the 1996 Hague Convention depends on which authorities are better placed to assess the child’s best interests, not on which country would provide the preferable home. The parens patriae jurisdiction, although capable of arising from nationality, must be exercised cautiously and only where sufficiently compelling circumstances make it necessary. It was inappropriate to exercise that jurisdiction to protect a child already safely within the protection of competent foreign child-protection authorities.

CB was born in Spain to British parents and had lived there throughout her life. At five weeks old she was removed from her parents’ care by the Andalusian child-protection authorities and placed in foster care. Her mother applied to the High Court for orders under the inherent jurisdiction, including the child’s return to England and Wales.

The court listed jurisdiction as a preliminary issue. The issues included CB’s habitual residence on 1 December 2024, the possible application of Articles 8 or 9 of the 1996 Hague Convention, and whether the court should exercise its parens patriae jurisdiction. The central questions were whether CB was habitually resident in England and Wales despite never having been there, and whether jurisdiction should be transferred from Spain.

1. Habitual residence. The date for determining habitual residence was the date proceedings were issued. Habitual residence is ordinarily a factual question concerned with the child’s integration into a social and family environment. Stability, rather than permanence or a fixed period of residence, is relevant. However, the authorities, including M (Children), A v A, Proceedings brought by A, In re LC, In re B and In re R, established that a child cannot be habitually resident in a country in which she has never been present.
2. CB had been born and had lived all her life in Spain. By the relevant date she was being cared for by Spanish authorities and foster carers, and her residence there had acquired stability. She had never been integrated into the social or family environment of England and Wales. The court therefore held that she was habitually resident in Spain. The conclusion would have been the same even without the clear rule concerning physical presence.
3. Transfer of jurisdiction. Article 9 of the 1996 Hague Convention was the potentially relevant mechanism. The question was whether the English authorities were better placed in the particular case to assess CB’s best interests. The Spanish authorities had responsibility for her care, knowledge of her circumstances and parental history, and welfare decision-making was already advanced in Spain. Transfer would cause delay. No request under Article 9 should therefore be made.
4. Parens patriae. CB’s British nationality was sufficient to found the jurisdiction, but its exercise required sufficiently compelling circumstances making protection by the English court necessary. CB did not require protection from the Spanish child-protection authorities, who were already providing it.
5. The court concluded that it lacked jurisdiction under the Family Law Act 1986 and the 1996 Hague Convention, and should not exercise its parens patriae jurisdiction. The application was dismissed.