Habitual Residence of Child not lost
(Orse In re B (A Child) (Reunite International Child Abduction Centre intervening)) The Court considered the notion of habitual residence. The British girl with same sex parents had been taken to Pakistan, and her mother here sought her return. The other mother said that she was no longer habitually resident in the UK. The questions was, the girl having gone with the mother’s settled intention of making her home in Pakistan, did the child lose her habitual residence here upon leaving.
Held: The child remained habitually resident here (Lord Clarke and Lord Sumption dissenting). The court considered the two main principles, that a child should not be left without an habitual residence, and that the UK interpretation of the concept should be aligned with the international one. Here, however, a third principle was in play, the consideration of how and when a child may lose (or change) her habitual residence. UK law had taken it to depend largely on parental intention.
The presence of a child within a particular jurisdiction was no longer sufficient to determine habitual residence. The greater a child’s involvement in a particular society, the greater should be the need for matters to confirm any change in habitual residence.
Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Sumption, Lord Toulson
[2016] UKSC 4, [2016] WLR(D) 52, [2016] AC 606, [2016] 1 FLR 561, [2016] Fam Law 298, [2016] 2 WLR 557, [2016] 2 FCR 307, UKSC 2015/0214
Bailii, WLRD, Bailii Summary, SC, SC Summary
England and Wales
Citing:
At First Instance – Re B (A Child) FD 31-Jul-2014
The child had been taken to Pakistan by one of the now separated parents. Not knowing that P had been so taken, the other mother applied for an order to help her find her, and for contact. Having learnt that the respondent had taken her to Pakistan, . .
Cited – Re CB (A Child) CA 6-Aug-2015
P was the child of now separated women. P was born in the UK but taken by one parent to Pakistan. The other parent now appealed from refusal of her request for the court to exercise its inherent jurisdiction or wardship to support her application . .
Cited – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – Re F (A Minor) (Child Abduction) CA 1992
The family had moved to Australia from England. Within weeks the father moved out of the house at the mother’s suggestion. The father took the child to England on 10 July. Johnson J had held at first instance that by 21 May the family were . .
Cited – in Re M (Abduction: Habitual Residence) CA 1996
The court accepted a proposition that one parent with parental responsibility could not achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility. . .
Cited – A (Area of Freedom, Security and Justice) ECJ 2-Apr-2009
ECJ Judicial co-operation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility – Regulation (EC) No 2201/2003 . .
Cited – Mercredi v Richard Chaffe (Area of Freedom, Security And Justice) ECJ 22-Dec-2010
ECJ Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility – Child whose parents are not married – Concept of ‘habitual residence’ of an infant – . .
Cited – In re LC (Children) SC 15-Jan-2014
The test for determining whether a child was habitually resident in a place is whether there was some degree of integration by her (or him) in a social and family environment there, may the court, in making that determination in relation to an . .
Cited – AR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .
Cited – Re CB (A Child) CA 6-Aug-2015
P was the child of now separated women. P was born in the UK but taken by one parent to Pakistan. The other parent now appealed from refusal of her request for the court to exercise its inherent jurisdiction or wardship to support her application . .
Cited by:
Cited – M (Children : Habitual Residence : 1980 Hague Child Abduction Convention) CA 25-Aug-2020
F sought the return of his children to Germany. They had lived there, but brought to the UK by M with F’s consent. She stayed for a year, and the court now considered where was their habitual residence. The judge considered that they had not lost . .
Lists of cited by and citing cases may be incomplete.
Children
Leading Case
Updated: 31 October 2021; Ref: scu.559504