A (A Child) (Habitual Residence), Re

Jurisdiction based on habitual residence must be assessed at the date proceedings are commenced. Where jurisdiction initially rests on habitual residence, the court must also be satisfied that it remains at the final hearing.

Habitual residence is a broad question of fact, requiring an assessment of the child’s integration and the quality and stability of residence in each relevant state. There is no fixed period of residence, requirement of parental intention to remain permanently, or rule preventing one parent from unilaterally changing a child’s habitual residence. Stability, rather than permanence, is the critical consideration. A child’s immigration status may be relevant, but a visa requirement is not necessarily a substantive obstacle to habitual residence.

A, born in April 2022, was taken by his mother from England to India on 28 December 2024. The parents had agreed that the stay would be temporary and that A would return to England in September 2025, but the mother retained him in India.

The father applied under the inherent jurisdiction on 17 October 2025 for wardship and A’s summary return. The mother argued that A was habitually resident in India and that the English court lacked jurisdiction. She also argued that India was the convenient forum and sought permission to rely on additional abuse allegations if the English court retained jurisdiction.

The central issue was A’s habitual residence when proceedings commenced and, if necessary, at the final hearing.

1. Disposition. The court declared that A was habitually resident in India on 17 October 2025 and that it therefore lacked jurisdiction. The wardship order was discharged and the application for summary return was dismissed. The forum issue and the mother’s application concerning additional abuse allegations did not require determination.
2. Applicable date. Jurisdiction was determined by reference to the date proceedings commenced. Because habitual residence was relied upon, the court also had to be satisfied that jurisdiction remained at the final hearing. The conclusions at the final hearing date applied with greater force.
3. Legal approach. Habitual residence was a broad question of fact, not a formulaic exercise. The court considered the child’s integration, family circumstances, care, education, language, healthcare, activities, residence and links with each state. There was no burden of proof.
4. The child’s previous deep integration in England, British citizenship, right of abode, continuing relationship with his father and the parents’ original intention of a temporary stay were relevant. However, those matters had to be assessed against A’s circumstances when proceedings commenced, not only when he left England.
5. By October 2025 A had spent a significant proportion of his life in India, was settled with his primary carer and extended family, attended nursery, was enrolled for the next academic year, received healthcare and immunisations there, and had developed linguistic, social and cultural links. His Indian residence had stability despite the need for visa renewal. The visa requirement was a process-based requirement rather than a substantive obstacle.
6. The unilateral nature of the mother’s retention did not prevent a change of habitual residence. There was no rule that one parent could not unilaterally change a child’s habitual residence. Stability, rather than permanence or an intention to reside indefinitely, was decisive.