Wirral Metropolitan Borough Council v AZM & Anor

For a newborn child, habitual residence is determined factually by asking whether there is sufficient integration in a social and family environment. The factors relevant to older children, including language, schooling, friendships, duration and stability, may have little or no relevance to a child one day old. Physical presence in the country is required, but the degree of integration required is child-specific. A planned birth, the primary carer’s residence and intentions, antenatal care, and immediate family connections may suffice. It should remain exceptional to conclude that a newborn has no country of habitual residence. A finding of habitual residence does not prevent a later request for another Contracting State to assume jurisdiction where it is better placed to assess the child’s best interests.

The Local Authority issued proceedings for an interim care order on the first day of AZ’s life. AZ was born in England to AZM, a Romanian national with recent connections to Austria and Romania. AZ had not left the hospital when the jurisdiction issue was heard.

The court had to determine AZ’s habitual residence at the date proceedings were issued under the 1996 Hague Convention. The parties disputed whether she was habitually resident in England and Wales, had no established habitual residence, or whether another Contracting State should assume jurisdiction.

1. Habitual residence established. AZ was habitually resident in England and Wales at the date proceedings were issued, when she was one day old. The court retained jurisdiction under Article 5 of the 1996 Hague Convention.
2. Habitual residence is an issue of fact. The court must ask whether, having regard to all relevant circumstances, the child has achieved a sufficient degree of integration in a social and family environment. Physical presence in the country is necessary. The child cannot be habitually resident in a country in which she has never been present.
3. The assessment must be adapted to the child’s age and circumstances. For a newborn, language, schooling, friendships, duration and stability of residence may be irrelevant or incapable of meaningful assessment. Their absence cannot itself count against habitual residence.
4. Relevant circumstances included the planned birth in England, antenatal care in England, the mother’s residence there for two months, her family home with the maternal grandmother and uncle, her connections with England, and the likelihood that she would have taken AZ home there if the interim care order had not been made.
5. It should not be commonplace to find that a newborn has no country of habitual residence. Such a conclusion should be exceptional. Even if later evidence showed that AZM intended to leave England soon after the birth, AZ was habitually resident in England and Wales at the relevant date.
6. Alternatively, if no habitual residence had been established, the English and Welsh courts would have jurisdiction under Article 6(2). The finding did not determine whether another Contracting State might be better placed to assess AZ’s best interests, or prevent a later request for transfer under Article 8.

First-instance preliminary jurisdiction determination. No earlier decision in the same proceedings is stated.