JUDGMENT
In the matter of A (Children) (AP)
before
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
9 September 2013
Heard on 22 and 23 July 2013
Appellant Respondents
James Turner QC Henry Setright QC
Alistair Perkins
Hassan Khan
Manjit Gill QC
Edward Devereux
David Marusza
(Instructed by Dawson
Cornwell)
(Instructed by Thompson
& Co)
Intervener (Reunite
International)
Intervener (Children and
Families Across Borders)
Richard Harrison QC Alex Verdan QC
Peter Newman Jacqueline Renton
Michael Gration
(Instructed by Bindmans
LLP)
(Instructed by Farrer & Co
LLP)
Intervener (The Centre for
Family Law and Practice)
Baroness Scotland QC
Ruth Kirby
Rachel Chisholm
Maeve O’Rourke
(Instructed by Hodge
Jones & Allen)
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LADY HALE (with whom Lord Wilson, Lord Reed and Lord Toulson agree)
1. The issue in this case is whether the High Court of England and Wales has
jurisdiction to order the “return” to this country of a small child who has never
lived or even been here, on the basis either that he is habitually resident here or
that he has British nationality.
The facts
2. The child, whom I shall call Haroon, was born on 20 October 2010 in
Pakistan. His father (born in 1973) is one of five siblings, who were all born in
England to parents who came here to live from Pakistan in the 1960s. His mother
(born in 1978) is the father’s first cousin. She was born and brought up in Pakistan
and entered into an arranged marriage with the father in Pakistan in 1999. She
joined the father here the following year and they lived together in a property
shared with other members of the father’s family. The mother and father have
three children together who were born here: a daughter born in 2001, who is now
12, a second daughter born in 2002, who is now 10, and a son born in 2005, who is
now eight. The father and children have dual British and Pakistani nationality and
the mother has indefinite leave to remain here. This much is uncontentious.
3. The subsequent history was in dispute at the fact-finding hearing before
Parker J in the High Court. However, the father had remained in Pakistan
throughout, had never made a witness statement, and was neither present nor (by
the final day) represented at the hearing. His version of events was put forward by
his brother. The judge ordered him to take part by telephone but he could not be
reached at the number through which he had previously been reached. The judge
had no doubt that the telephone had been deliberately turned off. Nevertheless, she
insisted that the mother give evidence and put the father’s version of events to her
“quite forcefully”. She found the mother to be an “intelligent, careful and precise
witness” and accepted her evidence. The following are therefore the facts as found
by the judge.
4. The marriage was happy until 2006, when the father began to spend a good
deal of time in Pakistan. In 2008, the mother complained of physical abuse by the
father and moved with the three children into a refuge. Early in 2009, they moved
into a flat owned by the father’s brother, PA, for which the mother paid rent. The
mother planned to take the children on a trip to Pakistan in the autumn to visit her
father. She obtained Pakistani identity cards for them, was given leave of absence
from their school, and travelled out with them on 13 October 2009, with tickets to
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return early in November. She did not know that the father was going to be in
Pakistan at the same time.
5. While they were staying at her father’s home, the father, his mother and
another brother arrived and, together with her own father, insisted that the parents
reconcile. The mother felt that she had no choice: there was physical and
emotional coercion. She returned with the father to his family home in Pakistan
and was forced to give up her own and the children’s passports, although she later
managed to retrieve her own. But she made it clear that she wanted to return with
the children to England. The judge did not find it necessary to make “any specific
finding about violence”. She was “quite satisfied that such pressure was put on the
mother that she had no choice in her own mind, particularly because she did not
want to leave her children and that she was frightened of the consequences”.
6. In February 2010, the mother became pregnant with Haroon. The refuge in
England confirmed that, from that month, she was making telephone calls to them
asking for their help to return with the children to England. After Haroon was
born, the father brought proceedings for custody of the children in Pakistan. In
December 2010, the mother’s father brought proceedings, as the judge termed it,
“essentially for habeas corpus” of the mother and the four children. It appears that
both sets of proceedings were dropped. Eventually, in May 2011, the mother’s
father sent elders round to the father’s family to persuade them to let the mother
leave for a few days to stay with relatives. She was thus able to leave the country
with their help and return to England, but she had to leave the children behind.
7. These proceedings began on 20 June 2011 with an order made by Peter
Jackson J without notice to the father. By that order, the judge made all four
children wards of court and ordered that they be returned to England and Wales by
the father forthwith. Every person within the jurisdiction who was in a position to
do so was ordered to co-operate in assisting and securing the children’s immediate
return. Any person not within the jurisdiction who was in a position to do so was
requested to co-operate in assisting and securing their immediate return. The
judicial, administrative and law enforcement authorities of the Islamic Republic of
Pakistan were requested to use their best endeavours to assist in taking any steps
which might appear to them necessary and appropriate in locating, safeguarding
and facilitating the return of the children in accordance with the spirit of the UKPakistan Judicial Protocol on Children Matters signed by the Chief Justice of
Pakistan and the President of the Family Division of the High Court of England
and Wales on 17 January 2003. That order was served on the father in Pakistan and
confirmed by Her Honour Judge Coates on 30 September 2011.
8. On 31 October 2011, the mother obtained a without notice order from
Eleanor King J freezing the father’s assets in this country, with a view to
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sequestration as a means of persuading the father to comply with the court’s orders
or at least of providing the mother with funds to litigate in Pakistan. This brought
the father’s brother, PA, into the proceedings, as he is co-owner of one of the
properties specifically named in the order. The order was confirmed by Her
Honour Judge Cahill QC on 28 November 2011 after a hearing at which the father
was represented by counsel, but not present. The matter was listed for
determination of the jurisdiction question in February 2012. Despite various
manoeuvrings in an attempt to have it postponed, the hearing went ahead before
Parker J, with the father playing no part and PA now acting in person with another
brother, JA, as his McKenzie friend. PA had also filed two witness statements
setting out the case for the father and his family.
9. On 20 February 2012, Parker J determined that all four children were
habitually resident in England and Wales: [2012] EWHC 663 (Fam). She was
satisfied that the mother never voluntarily sought for the children to live in
Pakistan. She rejected the father’s assertion that there was an agreement that the
parents should reconcile and live in Pakistan. She accepted that the mother never
acquiesced, became resigned or consented to her and the children remaining in
Pakistan. The three older children therefore retained their habitual residence in
England. Adopting the approach of Charles J in B v H (Habitual Residence:
Wardship) [2002] 1 FLR 388, she determined that Haroon, too, was habitually
resident here, having been born to a mother who remained habitually resident here
and who was kept in Pakistan against her will. She continued both the wardship
and the freezing orders and again ordered that the children be returned to this
jurisdiction by their father forthwith.
10. The father and his brother applied for permission to appeal out of time to
the Court of Appeal, which heard the case in July 2012. The reserved judgment
was sent to the parties in October 2012, but the order was not made until 31
January 2013, when a short supplemental judgment was delivered: [2012] EWCA
Civ 1396 and [2013] EWCA Civ 232. The Court unanimously dismissed the
father’s appeal in respect of the three older children, described by Patten LJ as
“quite hopeless”. But by a majority, Rimer and Patten LJJ, his appeal in relation to
Haroon was allowed, on the ground that the acquisition of habitual residence in
any country requires the child in question to be physically present there. Habitual
residence is a question of fact and a rule that a newly born child is presumed on
birth to take the habitual residence of his parents “would be a legal construct
divorced from actual fact”. It would also be inconsistent with the approach of the
Court of Justice of the European Union. B v H (Habitual Residence: Wardship)
should be overruled. Thorpe LJ dissented. In his view a baby born to a mother
resident here while on holiday abroad would be habitually resident here from the
moment of birth and not from the time when he entered this country. But he
recognised that “on its facts this case narrowly falls on the right side of an
important boundary”.
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11. The judgment also invited the parties to make further submissions on
whether England and Wales was the right forum in which to determine the future
of the older children, given the Court’s decision about Haroon. By the time of the
hearing in January this year, it was clear that leading counsel now instructed on
behalf of the mother would be seeking permission to appeal to this Court and
wished to raise nationality as an alternative basis of jurisdiction. The most
economical course, therefore, was for him to seek to argue the point in this Court
and for the Court of Appeal to defer any consideration of the father’s forum non
conveniens argument until the outcome in this Court was known.
The legislation
12. Jurisdiction in cases concerning children is governed by two pieces of
legislation. The Family Law Act 1986 resulted from recommendations of the Law
Commission and Scottish Law Commission: Family Law: Custody of Children –
Jurisdiction and Enforcement within the United Kingdom (1984, Law Com No
138, Scot Law Com No 91). Its principal purpose was to provide a uniform scheme
for jurisdiction, recognition and enforcement of custody and related orders as
between the three different jurisdictions within the United Kingdom. But the
jurisdictional rules also apply as between England and Wales (and the other
jurisdictions in the United Kingdom) and other countries.
13. The rules as originally laid down in the 1986 Act have been modified to
take account of Council Regulation (EC) No 2201/2003 concerning jurisdiction
and the recognition and enforcement of judgments in matrimonial matters and the
matters of parental responsibility, otherwise known as the Brussels II revised
Regulation (“the Regulation”), which is of course directly applicable in United
Kingdom law. They also now take account of the 1996 Hague Convention on the
Protection of Children, but that was not incorporated into United Kingdom law
until after the relevant date for our purposes, which all are agreed is 20 June 2011,
when the first order was made.
The scope of the Act and the Regulation
14. Part I of the 1986 Act applies only to “Part I orders”, defined for England
and Wales in section 1(1). For our purposes, the following are relevant:
“(a) a section 8 order made by a court in England and Wales under
the Children Act 1989, other than an order varying or discharging
such an order; . . .
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(d) an order made by a court in England and Wales in the exercise of
the inherent jurisdiction of the High Court with respect to children –
(i) so far as it gives care of a child to any person or provides for
contact with, or the education of, a child; but
(ii) excluding an order varying or revoking such an order;”
15. Article 1 of the Regulation defines its scope. By article 1.1(b) it applies to
civil matters relating to “the attribution, exercise, delegation, restriction or
termination of parental responsibility”. Article 1.2 gives a non-exhaustive list of
examples, including “(a) rights of custody and rights of access; (b) guardianship,
curatorship and similar institutions; (c) the designation and functions of any person
or body having charge of the child’s person or property, representing or assisting
the child; …” Article 1.3 contains a list of exclusions, none of which is relevant
here.
16. Article 2 of the Regulation defines some terms, including:
“2.7 the term ‘parental responsibility’ shall mean all rights and
duties relating to the person or the property of a child which are
given to a natural or legal person by judgment, by operation of law
or by an agreement having legal effect. The term shall include rights
of custody and rights of access; . . .
2.9 the term “rights of custody” shall include rights and duties
relating to the care of the person of a child, and in particular the right
to determine the child’s place of residence.”
17. The first question, therefore, is whether the order first made by Peter
Jackson J and repeated by Her Honour Judge Coates and by Parker J is either a
“Part I order” within the meaning of the 1986 Act or an order relating to parental
responsibility within the meaning of the Regulation.
Jurisdiction under the 1986 Act
18. If it is a Part I order, section 2 of the 1986 Act provides relevantly as
follows:
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“(1) A court in England and Wales shall not make a section 1(1)(a)
order with respect to a child unless – (a) it has jurisdiction under the
Council Regulation, or (b) the Council Regulation does not apply
but … (ii) the condition in section 3 of this Act is satisfied. . . .
(3) A court in England and Wales shall not make a section 1(1)(d)
order unless – (a) it has jurisdiction under the Council Regulation, or
(b) the Council Regulation does not apply, but (i) the condition in
section 3 of this Act is satisfied, or (ii) the child concerned is present
in England and Wales on the relevant date and the court considers
that the immediate exercise of its powers is necessary for his
protection.”
19. Section 3 relevantly provides:
“(1) The condition referred to in section 2(1)(b)(ii) of this Act is that
on the relevant date the child concerned – (a) is habitually resident in
England and Wales, or (b) is present in England and Wales and is not
habitually resident in any part of the United Kingdom, . . .”
The omission of a reference to section 2(3)(b)(i) from section 3(1) appears to be an
oversight which does not alter the sense of the provisions.
20. Thus, if the order in question is a Part I order, the first port of call is the
Regulation. But if it is not a Part I order, and is an order relating to parental
responsibility within the meaning of the Regulation, the first port of call is also the
Regulation, because it is directly applicable in United Kingdom law. That,
however, raises the prior question of whether the jurisdictional scheme in the
Regulation applies not only in cases potentially involving two or more European
Union members who are parties to the Regulation (all save Denmark) but also in
cases potentially involving third countries such as Pakistan.
The jurisdictional scheme in the Regulation
21. The general rule is contained in article 8:
“1. The courts of a Member State shall have jurisdiction in matters of
parental responsibility over a child who is habitually resident in that
Member State at the time the court is seised.
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2. Para 1 shall be subject to the provisions of Articles 9, 10 and 12.”
22. Article 9 provides for the courts of a child’s former habitual residence to
retain jurisdiction to modify a judgment about access rights for three months after
the child has lawfully moved from one Member State to another. More
significantly, Article 10 provides for cases where a child has been wrongfully
removed or retained. The courts of the Member State where the child was
habitually resident immediately before the wrongful removal or retention retain
jurisdiction until the child has acquired a habitual residence in another Member
State and either each person with rights of custody has acquiesced in the removal
or retention or (to paraphrase) the child lived there for at least a year after the
person left behind should have known his whereabouts, the child is settled there
and (in effect) there are no extant proceedings for his return. Article 12 gives
jurisdiction in relation to parental responsibility if the child has a substantial
connection with that Member State, all parties have accepted that jurisdiction, and
it is in the best interests of the child: the application of this provision in a case
where the child was habitually resident in Pakistan was considered by this Court in
Re I (A Child) (Contact Application: Jurisdiction)(Centre for Family Law and
Practice intervening) [2009] UKSC 10, [2010] 1 AC 319..
23. Two other articles also give jurisdiction. Article 13 gives jurisdiction to the
courts of the Member State where the child is present, if the child’s habitual
residence cannot be established and article 12 does not determine jurisdiction.
More relevantly in this case, article 14 provides for a residual jurisdiction:
“Where no court of a Member State has jurisdiction pursuant to
Articles 8 to 13, jurisdiction shall be determined, in each Member
State, by the laws of that State.”
24. Finally, reference should be made to articles 15, 19 and 20, all of which
address potential conflicts between the courts in different Member States. Article
15 provides, by way of exception, that the courts of the Member State having
jurisdiction may transfer the case to another Member State with which the child
has a particular connection, if it would be better placed to hear the case, and this is
in the best interests of the child. Article 19.2 and 19.3 provide that, where
proceedings relating to parental responsibility in respect of the same child are
brought in different Member States, the court second seised must stay the
proceedings until it is established whether the court first seised has jurisdiction,
and if that court does have jurisdiction the second court must decline it. Article 20
allows the courts of a Member State to take provisional measures in urgent cases,
even if another has jurisdiction over the substance of the matter.
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Was this a Part I order?
25. Mr Henry Setright QC argues on behalf of the father and his brother that the
order made by Peter Jackson J fell within section 1(1)(a) of the 1986 Act because
it was a “specific issue order” made under section 8 of the Children Act 1989. This
is defined as “an order giving directions for the purpose of determining a specific
question which has arisen, or which may arise, in connection with any aspect of
parental responsibility for a child”: see s 8(1). Mr James Turner QC argues on
behalf of the mother that, because the order was made in proposed proceedings
under the inherent jurisdiction of the High Court, it could not be a Children Act
order. Neither is completely right.
26. The court has power to make any section 8 order of its own motion in any
“family proceedings” in which a question arises with respect to the welfare of any
child: see s 10(1)(b). Proceedings under the inherent jurisdiction of the High Court
are family proceedings for this purpose: see s 8(3)(a). So, assuming for the
moment that an order to return or bring a child to this jurisdiction falls within the
definition of a specific issue order, the judge might have made such an order even
though this was not what the mother applied for. But that is not what he did. There
are many orders relating to children which may be made either under the Children
Act 1989 or under the inherent jurisdiction of the High Court: an order authorising
a blood transfusion for a Jehovah’s Witness child is a good example. There is no
mention of the Children Act 1989 in the order made by Peter Jackson J, which
specifically refers to the inherent jurisdiction and moreover also makes the
children wards of court, which is not an order available under the Children Act
1989.
27. So does the order fall within section 1(1)(d) of the 1986 Act? Quite clearly
it does not fall within the wording of that para. It is not an order giving care of a
child to any person or providing for contact with or education of a child. Moreover
it is clear from the Law Commissions’ Report that the Scottish Law Commission
had regretfully acknowledged the view of the Law Commission that “a review of
the wardship jurisdiction beyond the core areas of care and control, access and
education would require further consultation and could not now be undertaken in
this exercise without causing unacceptable delay”: Law Com No 138, para 1.25.
28. I conclude, therefore, that the order made by Peter Jackson J and repeated
by Parker J fell neither within section 1(1)(a) or section 1(1)(d) of the 1986 Act
and was therefore not covered by the jurisdictional prohibitions in section 2 of that
Act.
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Was this an order relating to parental responsibility within the scope of the
Regulation?
29. Parental responsibility is given a wide definition in article 2.7 and must
include deciding where the child shall be for the time being. The order to bring the
children to this jurisdiction related to the exercise of that power. Furthermore, the
order made the children wards of court, which places them in the guardianship of
the High Court, and is thus one of the examples expressly referred to in article
1.2(b). I conclude, therefore, that the orders made did fall within the scope of the
Regulation.
Does the Regulation apply where there is a rival jurisdiction in a non-Member
State?
30. The Regulation deals with jurisdiction, recognition and enforcement in
matrimonial and parental responsibility matters. Chapter III, dealing with
recognition and enforcement, expressly deals with the recognition in one Member
State of judgments given in another Member State: see article 21.1. But there is
nothing in the various attributions of jurisdiction in Chapter II to limit these to
cases in which the rival jurisdiction is another Member State. Article 3 merely
asserts that in matters relating to divorce, legal separation or marriage annulment
“jurisdiction shall lie with the courts of the Member State” in relation to which the
various bases of jurisdiction listed there apply. Article 8 similarly asserts that the
courts of a Member State “shall have jurisdiction in matters of parental
responsibility . . .” Furthermore, article 12.4 deals with a case where the parties
have accepted the jurisdiction of a Member State but the child is habitually
resident in a non-Member State, thus clearly asserting jurisdiction as against the
third country in question. Hence in Re I (A Child) (Contact Application:
Jurisdiction), this Court held that article 12 did apply in a case where the child was
habitually resident in Pakistan. There is no reason to distinguish article 12 from the
other bases of jurisdiction in the Regulation.
31. In Owusu v Jackson (Case C-281/02) [2005] QB 801, the Court of Justice
of the European Communities held that the rule in article 2 of the Brussels
Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Measures 1968, which required that “persons domiciled in a
contracting state shall, whatever their nationality, be sued in the courts of that
state”, meant that the courts of that state had to assume jurisdiction, even though
there was a third country which also had jurisdiction and even though that country
was, on the face of it, the more appropriate forum in which to bring the action.
Thus the English court was not only empowered but obliged to assert and exercise
jurisdiction rather than leave the parties to the jurisdiction of a state (Jamaica)
which was not party to the Convention.
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32. We have not heard detailed argument on whether the courts of a Member
State which has jurisdiction in respect of parental responsibility for a child under
the Brussels II revised Regulation is obliged to exercise that jurisdiction even
though there is a third country which would be better placed to hear the case. The
wording of articles 3 and 8 of the Regulation is not the same as that in article 2 of
the Brussels Convention. Furthermore, article 19 of the Regulation deals with the
position where there are pending proceedings in two Member States and article 15
allows the courts of the Member State having jurisdiction to transfer the case to
another Member State in appropriate circumstances (see para 24 above). It might
therefore be thought anomalous for this to be precluded in a case where the courts
of a non-Member State were better placed to hear the case.
33. In the context of matrimonial proceedings, it has twice been held in the
High Court that Owusu v Jackson does not prevent the court from invoking the
statutory power (in section 5(6) and para 9 of Schedule 1 to the Domicile and
Matrimonial Proceedings Act 1973) to stay proceedings here if there are already
proceedings in a non-Member State: see JKN v JCN (Divorce: Forum) [2010]
EWHC 843 (Fam); [2011] 1 FLR 826 and AB v CB [2012] EWHC 3841 (Fam);
[2013] 2 FLR 29. We are told that permission to appeal has been granted in the
latter case. It would therefore be unwise of us to express a view on the position in
children’s cases, which might well require us to make a reference to the Court of
Justice. The relevance of Owusu v Jackson is merely to reinforce the conclusion
that the jurisdiction provisions of the Regulation do indeed apply regardless of
whether there is an alternative jurisdiction in a non-Member State.
Is there jurisdiction under article 8 of the Regulation?
34. Jurisdiction under article 8 depends upon where the child is habitually
resident. It has hitherto been thought (see, for example, Dicey, Morris and Collins
on The Conflict of Laws, 15th Edition (2012), Rules 17(2) and 18(2); Clarke Hall
and Morrison on Children, paras 234 and 236) that the concept of habitual
residence, as developed by the courts of England and Wales for the purposes of
both the 1986 Act and the Hague Convention on the Civil Aspects of International
Child Abduction 1980 (“the Hague Child Abduction Convention”), is different
from the concept of habitual residence as interpreted by the Court of Justice of the
European Union for the purposes of the Regulation. Very recently, in DL v EL
[2013] EWCA Civ 865, at para 48, the Court of Appeal has expressed the view
that “there is now no distinction to be drawn” between the test adopted in each of
those three contexts. As we are dealing only with habitual residence under the
Regulation, it is not strictly necessary for us to resolve that debate.
35. Nevertheless, it is highly desirable that the same test be adopted and that, if
there is any difference, it is that adopted by the Court of Justice. There are several
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reasons for this. First, the Law Commissions recommended the adoption of
“habitual residence” in part because it had been widely used in international
conventions, including the Council of Europe Convention on the Recognition and
Enforcement of Decisions concerning Custody of Children and on Restoration of
Custody of Children (1981) Cmnd 8155 and the Hague Child Abduction
Convention, and was likely to be recognised abroad: see Law Com No 138, para
4.15. As Advocate General Kokott pointed out in Proceedings brought by A (Case
C-523/07) [2010] Fam 42, various international conventions, in particular the
Hague Convention of the Protection of Minors 1961, the Hague Convention on the
Protection of Children 1996 which superseded it, and the Hague Convention on the
Civil Aspects of International Child Abduction 1980, formed part of the legislative
history of the Regulation. In part, the Regulation supersedes them. In part, they
operate alongside one another. The “fields of application of the various
instruments must be consistently demarcated from one another”. This presumed a
“uniform understanding of the concept of habitual residence” (para AG23). Thus it
would appear that the purpose of both the 1986 Act and the Regulation was to
adopt a concept which would apply across the board.
36. Secondly, as both the Law Commissions and the Advocate General pointed
out, that concept was to be distinguished from “the legalistic concept of domicile”
(para AG31). As Professor Perez-Vera put it in her Explanatory Report on the
Hague Child Abduction Convention:
“66. . . . We shall not dwell at this point upon the notion of habitual
residence, a well-established concept in the Hague Conference,
which regards it as a question of pure fact, differing in that respect
from domicile.”
To the same effect are the first two of the four well-known propositions of Lord
Brandon in the leading English case on habitual residence under the Child
Abduction Convention, Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC
562, 578:
“The first point is that the expression ‘habitually resident’, as used in
article 3 of the Convention, is nowhere defined. It follows, I think,
that the expression is not to be treated as a term of art with some
special meaning, but is rather to be understood according to the
ordinary and natural meaning of the two words which it contains.
The second point is that the question whether a person is or is not
habitually resident in a specified country is a question of fact to be
decided by reference to all the circumstances of any particular case.”
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37. Thirdly, however, as Rhona Schuz has put it “Many courts have been
unable to resist the temptation to ‘legalise’ the concept” (“Habitual residence of
children under the Hague Child Abduction Convention – theory and practice”
(2001) 13 CFLQ 1, at 4). In particular, the courts in England and Wales have
supplied their own test, derived from the test of “ordinary residence” regarded by
the House of Lords in R v Barnet London Borough Council, ex p Shah [1983] 2
AC 309 as settled law, itself derived from taxation statutes. Lord Scarman defined
it thus, at 343:
“Unless, therefore, it can be shown that the statutory framework or
the legal context in which the words are used requires a different
meaning, I unhesitatingly subscribe to the view that ‘ordinarily
resident’ refers to a man’s abode in a particular place or country
which he has adopted voluntarily and for settled purposes as part of
the regular order of his life for the time being, whether of short or of
long duration.”
(See, for example, Re M (Abduction: Habitual Residence) [1996] 1 FLR 887; AlHabtoor v Fotheringham [2001] 1 FLR 951; Re R (Abduction: Habitual
Residence) [2004] 1 FLR 216; Re P-J (Children) (Abduction: Consent) [2010] 1
WLR 1237; Re H-K (Habitual Residence) [2012] 1 FLR 436).
38. This test has at least two disadvantages. In the first place, the Law
Commissions deliberately adopted “habitual” rather than “ordinary” residence,
because the latter frequently occurred in tax and immigration statutes and they
thought that its use in the wholly different context of family law was a potential
source of confusion (Law Com No 138, para 4.15). Furthermore, the reference to
adopting an abode “voluntarily and for settled purposes” is not readily applicable
to a child, who usually has little choice about where he lives and no settled
purpose, other than survival, in living there. If this test is adopted, the focus
inevitably shifts from the actual situation of the child to the intentions of his
parents.
39. Fourthly, and perhaps for that reason, the English courts have been tempted
to overlay the factual concept of habitual residence with legal constructs. The most
important of these is the “rule” that where two parents have parental responsibility
for a child, one cannot change the child’s habitual residence unilaterally: this dates
back at least as far as a dictum of Lord Donaldson MR in the Court of Appeal in
Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, at 572, and the
decision of Wall J in In re S (Minors)(Child Abduction: Wrongful Retention)
[1994] Fam 70, approved by the Court of Appeal in Re M (Abduction: Habitual
Residence) [1996] 1 FLR 887, 892, and taken for granted ever since. It was for this
reason that Patten LJ regarded the father’s appeal in relation to the three older
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children as “quite hopeless”. Recognising a unilateral fait accompli would be a
“charter for abduction” (para 52).
40. The father has not challenged that conclusion in this Court and so the
question is not before us. It is worth noting that the “rule” has not been universally
adopted: see, for example, Mozes v Mozes 239 F 3rd 1067 (9th Circuit 2001); SK v
KP [2005] 3 NZLR 590. Nor is there a hint of it in the European jurisprudence. It
would not inevitably be a charter for abduction. Both the 1986 Act and the
Regulation contain provisions designed to retain jurisdiction in the country where
a child was formerly habitually resident for at least a year after his wrongful
removal or retention: see 1986 Act, s 41 (albeit that it has been held that this does
not apply as between the United Kingdom and other countries: Re S (A Child:
Abduction) [2002] EWCA Civ 1941, [2003] 1 FLR 1008) and Regulation, article
10 (see para 22 above). As Lord Hughes points out, article 10 provides a good
reason why the courts of England and Wales retain jurisdiction over the three older
children in any event. The Hague Child Abduction Convention is concerned with
wrongful removal or retention of a child from the country where he was habitually
resident immediately before that wrongful removal or retention: see article 3. As
Lord Hughes also points out, the “rule” is more relevant in retention than removal
cases, but the answer may lie in treating the unilateral change of habitual residence
as the act of wrongful retention, even if it takes place before the child was due to
be returned. The matter may therefore require fuller consideration in another case,
but it is not necessary for us to express a concluded view.
41. Fifthly, of course, once one adopts concepts of this sort, it becomes
tempting to construct another “rule”, that a child’s habitual residence is necessarily
that of his primary carer or carers. In Re J (A Minor) (Abduction: Custody Rights)
[1990] 2 AC 562, Lord Brandon continued, at 579C:
“The fourth point is that, where a young child of J’s age is in the sole
lawful custody of the mother, his situation with regard to habitual
residence will necessarily be the same as hers.”
42. It may then seem a small step to apply this principle to a case in which the
child has never even been present, let alone lived, in the country where his primary
carer is habitually resident. It is not difficult to think of examples where this would
accord with both the underlying reality and the “criterion of proximity” referred to
in Recital 12 to the Regulation. In this case, Thorpe LJ gave the example of “an
English mother habitually resident in England who gives birth to a child in France.
As a result of complications mother and child are hospitalised for an extended
period before they are fit to come home” (para 29). In his view, the child was
habitually resident in England from birth and not just from when she set foot in
this country. In In re T (A Child)(Care Proceedings: Request to Assume
Page 15
Jurisdiction [2013] EWHC 521 (Fam), [2013] Fam 253, a pregnant 17 year old
Slovakian girl ran away from a children’s home in Slovakia and gave birth to the
baby here. While deciding to transfer the case to Slovakia under article 15, Mostyn
J “would instinctively conclude that an infant’s habitual residence derives from his
mother” (para 41) were it not for the Court of Appeal’s decision in this case. In B v
H (Habitual Residence: Wardship) [2002] 1 FLR 388, both parents were habitually
resident in England, where the child was conceived, but she was born in
Bangladesh, after the father had refused to let the mother and the other children
return home from a holiday. Charles J held that all the children, including the new
baby, were habitually resident here. He placed some reliance on Re J (above) and
also took the view that to erect a positive rule that physical presence was a
necessary prerequisite to establishing an habitual residence ran “counter to the
proposition . . . that habitual residence is, or is primarily, an issue of fact and is not
an artificial concept” (para 133). The facts of this case are, of course, very similar
to those of B v H.
43. It follows from the requirement that residence be habitual that it is not lost
by temporary absences, such as that of the mother giving birth while on holiday in
France or the mother on the run from a Slovakian children’s home. Thus one can
be habitually resident somewhere where one is not actually present at the relevant
time. No-one doubts that this mother remained habitually resident in England
during her enforced absence in Pakistan. From this too, it can appear artificial to
construct a rule that physical presence at some time, however fleeting, is an
essential pre-requisite.
44. On the other hand, the English jurisprudence recognises that a person may
have no country of habitual residence. In Re J, at 578-9, Lord Brandon said this:
“The third point is that there is a significant difference between a
person ceasing to be habitually resident in country A, and his
subsequently becoming habitually resident in country B. A person
may cease to be habitually resident in country A in a single day if he
or she leaves it with a settled intention not to return to it but to take
up long-term residence in country B instead. Such a person cannot,
however, become habitually resident in country B in a single day. An
appreciable period of time and a settled intention will be necessary to
enable him or her to become so. During that appreciable period of
time the person will have ceased to be habitually resident in country
A but not yet have become habitually resident in country B.”
I share Lord Hughes’ view that the third and fourth points made by Lord Brandon
are best seen as helpful generalisations of fact, which will usually but not
invariably be true, rather than as propositions of law. There has been a tendency to
Page 16
construe this fourth statement as if it were a statute, and debate the meaning of
“appreciable time”. I would not accept that it is impossible to become habitually
resident in a single day. It will all depend upon the circumstances. But I would
accept that one may cease to be habitually resident in one country without having
yet become habitually resident in another.
45. Finally, as we have seen, in the vast majority of cases jurisdiction will now
be governed by the Regulation, which the courts in the United Kingdom will have
to construe in accordance with the guidance given by the Court of Justice.
46. How then does the English approach square with that of the Court of Justice
of the European Union? That court has considered the matter in two cases.
Proceedings brought by A (Case C-523/07) [2010] Fam 42 concerned a family
who had originally lived in Finland but then moved to live in Sweden. Some years
later, they travelled to Finland in a camper van, originally for the holidays, moving
from campsite to campsite and the children did not go to school. But in October
the parents applied to the Finnish authorities for social housing. So were the
children habitually resident in Finland?
47. Advocate General Kokott stressed that habitual residence had to be
distinguished from mere presence (para AG20), and also from “the legalistic
concept of domicile” (para AG31). She proposed that it should correspond to “the
actual centre of interests of the child” (para AG38); the court should take account
of all factors present when it was seised of the case (para AG 39); the duration and
regularity of residence and the child’s familial and social integration may be
particularly significant (para 40).
48. The “actual centre of interests” concept dates back to Professor Steiger’s
Explanatory Report to the 1961 Protection of Children Convention and has been
adopted by the Court of Justice in other contexts. But in Proceedings brought by A
the Court accepted that the approach under the Regulation should be different from
the approach in other areas of European Union law. Their approach was a childcentred one:
“38. In addition to the physical presence of the child in a member
state, other factors must be chosen which are capable of showing that
that presence is not in any way temporary or intermittent and that the
residence of the child reflects some degree of integration in a social
and family environment.” (Emphasis supplied)
The operative part of the judgment put it this way:
Page 17
“2. The concept of ‘habitual residence’ under article 8(1) . . . must be
interpreted as meaning that it corresponds to the place which reflects
some degree of integration by the child in a social and family
environment. To that end, in particular the duration, regularity,
conditions and reasons for the stay on the territory of a member state
and the family’s move to that state, the child’s nationality, the place
and conditions of attendance at school, linguistic knowledge and the
family and social relationships of the child in that state must be taken
into consideration. It is for the national court to establish the habitual
residence of the child, taking account of all the circumstances
specific to each individual case.”
49. Mercredi v Chaffe (Case C-497/10 PPU) [2012] Fam 22 concerned a two
month old baby born in England to unmarried parents and removed by her French
mother to the French island of La Réunion. The English court made orders for her
return four days later. But proceedings in France under the Hague Child Abduction
Convention failed because the father did not have rights of custody. Was the child
habitually resident in England and Wales when the orders were first made? The
Court of Justice repeated much of the guidance in Proceedings brought by A,
including this:
“49 . . . in order to determine where a child is habitually resident, in
addition to the physical presence of the child in a member state,
other factors must also make it clear that that presence is not in any
way temporary or intermittent.” (Emphasis supplied)
50. The court went on to point out that the child’s age is liable to be of
particular importance. Normally it is the social and family environment of the
child which is fundamental in determining habitual residence. But where the child
concerned is an infant:
“55 . . . An infant necessarily shares the social and family
environment of the circle of people on whom he or she is dependent.
Consequently, where . . . the infant is in fact looked after by her
mother, it is necessary to assess the mother’s integration in her social
and family environment. In that regard, the tests stated in the court’s
case law, such as the reasons for the move by the child’s mother to
another member state, the languages known to the mother or again
her geographic and family origins may become relevant.”
The operative part of the judgment put it this way:
Page 18
“1 The concept of ‘habitual residence’ . . . must be interpreted as
meaning that such residence corresponds to the place which reflects
some degree of integration by the child in a social and family
environment. To that end, where the situation concerned is that of an
infant who has been staying with her mother only a few days in a
member state – other than that of her habitual residence – to which
she has been removed, the factors which must be taken into
consideration include, first, the duration, regularity, conditions and
reasons for the stay in the territory of that member state and for the
mother’s move to that state and second, with particular reference to
the child’s age, the mother’s geographic and family origins and the
family and social connections which the mother and child have with
that member state.”
51. Incidentally, although not directly relevant to the point which we have to
decide, concern had been expressed in the English courts at other passages in
Mercredi v Chaffe which appeared to import a requirement of permanence for
residence to be habitual. At first instance in DL v EL, Sir Peter Singer compared
the French and English texts of the judgment, which showed that the French text
had almost throughout used “stabilité” rather than permanence and in the one place
where it did use “permanence” it was as an alternative to “habituelle”: [2013] 2
FLR 163, paras 71 et seq. It was this comparison which helped the Court of
Appeal to conclude that there was no difference between the English and European
approaches.
52. Understandably, Mr Setright concentrates on the phrase “in addition to the
physical presence of the child” which appears in both judgments. He can also pray
in aid the view previously taken in the English courts that, in order to be habitually
resident, one must first be resident, and that in order to be resident once must at
least have set foot in a country (see, for example, Re M (Abduction: Habitual
Residence) [1996] 1 FLR 887, per Sir John Balcombe at 895, heavily relied upon
by Patten LJ in this case). He does, however, accept that a child can acquire the
parent’s habitual residence almost immediately after arriving there.
53. Mr Turner stresses that the point with which we are concerned simply did
not arise in either Proceedings brought by A or Mercredi v Chaffe: the question
was whether the children were habitually resident in the place where they were.
The references to physical presence should be read in the context of the Advocate
General’s argument in Proceedings brought by A that “habitual residence must be
distinguished from mere presence” (AG20). In Mercredi the court had regarded the
habitual residence of an infant as depending on the social and family integration of
the mother, thus implying that the child’s habitual residence would be that of the
mother, even if the child had never been there. This is consistent with Lord
Brandon’s fourth point in Re J (above), with the undoubted proposition that one
Page 19
can be habitually resident without being physically present at the relevant time,
and with the realities of a young child’s situation.
54. Drawing the threads together, therefore:
i) All are agreed that habitual residence is a question of fact and not a
legal concept such as domicile. There is no legal rule akin to that whereby a
child automatically takes the domicile of his parents.
ii) It was the purpose of the 1986 Act to adopt a concept which was the
same as that adopted in the Hague and European Conventions. The
Regulation must also be interpreted consistently with those Conventions.
iii) The test adopted by the European Court is “the place which reflects
some degree of integration by the child in a social and family environment”
in the country concerned. This depends upon numerous factors, including
the reasons for the family’s stay in the country in question.
iv) It is now unlikely that that test would produce any different results
from that hitherto adopted in the English courts under the 1986 Act and the
Hague Child Abduction Convention.
v) In my view, the test adopted by the European Court is preferable to
that earlier adopted by the English courts, being focussed on the situation of
the child, with the purposes and intentions of the parents being merely one
of the relevant factors. The test derived from R v Barnet London Borough
Council, ex p Shah should be abandoned when deciding the habitual
residence of a child.
vi) The social and family environment of an infant or young child is
shared with those (whether parents or others) upon whom he is dependent.
Hence it is necessary to assess the integration of that person or persons in
the social and family environment of the country concerned.
vii) The essentially factual and individual nature of the inquiry should
not be glossed with legal concepts which would produce a different result
from that which the factual inquiry would produce.
Page 20
viii) As the Advocate General pointed out in para AG45 and the court
confirmed in para 43 of Proceedings brought by A, it is possible that a child
may have no country of habitual residence at a particular point in time.
55. So which approach accords most closely with the factual situation of the
child – an approach which holds that presence is a necessary pre-cursor to
residence and thus to habitual residence or an approach which focusses on the
relationship between the child and his primary carer? In my view, it is the former.
It is one thing to say that a child’s integration in the place where he is at present
depends upon the degree of integration of his primary carer. It is another thing to
say that he can be integrated in a place to which his primary carer has never taken
him. It is one thing to say that a person can remain habitually resident in a country
from which he is temporarily absent. It is another thing to say that a person can
acquire a habitual residence without ever setting foot in a country. It is one thing to
say that a child is integrated in the family environment of his primary carer and
siblings. It is another thing to say that he is also integrated into the social
environment of a country where he has never been.
56. However, I cannot be confident that this is acte clair for the purpose of
European Union law, for several reasons. First, the Court of Justice has not so far
had to consider a case such as the present, or indeed any of the examples given in
para 42 above. Second, the facts are particularly stark. This child would probably
not have been conceived, and certainly would not have been born and kept in
Pakistan, had his mother not been held there against her will. Without that, the
child would undoubtedly have become habitually resident in this country. Third,
the European Court would have to consider the implications for the Hague Child
Abduction Convention if a child such as this, or a child born on holiday, were held
to have no country of habitual residence. The whole Convention, beginning with
article 3, is predicated upon there being a state where the child is habitually
resident immediately before the wrongful removal or retention. Can it be the case
that the Convention would not apply if the child born to an English mother while
on holiday abroad were abducted from the hospital?
57. Fourth, there is judicial, expert and academic opinion in favour of the child
acquiring his mother’s habitual residence in circumstances such as these. Principal
amongst those judicial opinions is the conclusion reached by Lord Hughes in this
very case. Reunite International Child Abduction Centre, the leading nongovernmental organisation specialising in advice, assistance, mediation and
research in relation to international child abduction and the movement of children
across international borders, have intervened in this case in support of the mother.
They submitted that, while there should be no rule that a new-born child takes the
habitual residence of the mother, the child’s place of birth should carry little
weight where the only reason that the child has been born in a particular place is
because the mother has been deprived of her autonomy to choose where to give
Page 21
birth. The Centre for Family Law and Practice, whose co-Director has conducted
some important research into child abduction, similarly submitted that a person
who had used such coercion should not be enabled to deprive the child of the
protection of the courts of the country where he would otherwise have been born.
More broadly, it has been suggested that, given the inherent vagueness of the
concept, the decision in any particular case will inevitably depend upon a balance
between the applicable policy considerations: see Rhona Schuz, “Policy
Considerations in Determining the Habitual Residence of a Child and the
Relevance of Context” (2001) 11 J Transnational Law and Policy 101.
58. Hence I would not feel able to dispose of this case on the basis that Haroon
was not habitually resident in England and Wales on 21 June 2011 without making
a reference to the Court of Justice. But we can only refer a question to the Court if
it is necessary for us to determine the case before us. For the reasons which will
appear below, it is not at present so necessary.
Is there another basis of jurisdiction?
59. Article 14 applies where no court of a Member State has jurisdiction under
articles 8 to 13. No other Member State is involved in this case. Either the courts
of England and Wales have jurisdiction under article 8 or no court of a Member
State does so. In that case, the jurisdiction of England and Wales is determined by
the laws of England and Wales.
60. We have already established that the prohibition in section 2 of the 1986
Act does not apply to the orders made in this case. The common law rules as to the
inherent jurisdiction of the High Court continue to apply. There is no doubt that
this jurisdiction can be exercised if the child is a British national. The original
basis of the jurisdiction was that the child owed allegiance to the Crown and in
return the Crown had a protective or parens patriae jurisdiction over the child
wherever he was. As Lord Cranworth LC explained in Hope v Hope (1854) 4 De
GM & G 328, at 344-345:
“The jurisdiction of this Court, which is entrusted to the holder of the
Great Seal as the representative of the Crown, with regard to the
custody of infants rests upon this ground, that it is the interest of the
State and of the Sovereign that children should be properly brought
up and educated ; and according to the principle of our law, the
Sovereign, as parens patriae, is bound to look to the maintenance
and education (as far as it has the means of judging) of all his
subjects. The first question then is, whether this principle applies to
children born out of the allegiance of the Crown ; and I confess that I
Page 22
do not entertain any doubt upon the point, because the moment that it
is established by statute that the children of a natural born father born
out of the Queen’s allegiance are to all intents and purposes to be
treated as British born subjects, of course it is clear that one of the
incidents of a British born subject is, that he or she is entitled to the
protection of the Crown, as parens patria.”
61. The continued existence of this basis of jurisdiction was recognised by the
Court of Appeal in Re P (GE) (An Infant) [1965] Ch 568, where Lord Denning MR
said this:
“The court here always retains a jurisdiction over a British subject
wherever he may be, though it will only exercise it abroad where the
circumstances clearly warrant it: see Hope v Hope (1854) 4 De GM
& G 328; In re Willoughby (1885) 30 Ch D 324; R v Sandbach
Justices, ex p Smith [1951] 1 KB 62.”
The Law Commissions in their Report also recognised its continued existence,
while pointing out that “there appears to be no reported decision in which
jurisdiction to make a wardship order has been based on the allegiance of a child
who was neither resident nor present in England and Wales” (see Law Com No
138, paras 2.9 and 4.41). In fact, Hope was just such a case, as the boys in question
had been born in France to British parents, had never lived here (although they had
been brought here for a few days by their father), and were in France when the
proceedings were begun.
62. However, in Al Habtoor v Fotheringham [2001] 1 FLR 951, para 42 Thorpe
LJ advised that the court should be “extremely circumspect” and “must refrain
from exhorbitant jurisdictional claims founded on nationality” over a child who
was neither habitually resident nor present here, because such claims were
outdated, eccentric and liable to put at risk the development of understanding and
co-operation between nations. But in Re B; RB v FB and MA (Forced Marriage:
Wardship: Jurisdiction) [2008] 2 FLR 1624, Hogg J did exercise the jurisdiction in
respect of a 15 year old girl born and brought up in Pakistan, who had never been
here but did have dual Pakistani and British nationality. She had gone to the High
Commission in Islamabad asking to be rescued from a forced marriage and helped
to come to Scotland to live with her half-brother. The High Commission wanted to
help her but felt unable to do so without the backing of a court order. Hogg J made
the girl a ward of court and ordered that she be brought to this country. The halfbrother was assessed as offering a suitable home and in fact she went to him. Hogg
J explained that she thought the circumstances “sufficiently dire and exceptional”:
para 10. In Re N (Abduction: Appeal) [2013] 1 FLR 457, McFarlane LJ
commented that “If the jurisdiction exists in the manner described by Hogg J then
Page 23
it exists in cases which are at the very extreme end of the spectrum” (para 29). The
facts of that case were certainly not such as to require the High Court to assume
jurisdiction over the child in question.
63. In my view, there is no doubt that the jurisdiction exists, insofar as it has
not been taken away by the provisions of the 1986 Act. The question is whether it
is appropriate to exercise it in the particular circumstances of the case. Mr Turner
accepts that Parker J did not address herself to this basis of jurisdiction and to
whether, if Haroon were not habitually resident here, it would be appropriate to
exercise it. He accepts that the case will have to return to her in order for her to do
so.
64. Mr Setright, with the able assistance of Mr Manjit Gill QC, has raised a
number of important general considerations which may militate against its
exercise. It is inconsistent with and potentially disruptive of the modern trend
towards habitual residence as the principal basis of jurisdiction; it may encourage
conflicting orders in competing jurisdictions; using it to order the child to come
here may disrupt the scheme of the 1986 Act by enabling the child’s future to be
decided in a country other than that where he or she is habitually resident. In a
completely different context, there are also rules of public international law for
determining which is the effective nationality where a person holds dual
nationality.
65. All of these are reasons for, as Thorpe LJ put it in Al Habtoor, “extreme
circumspection” in deciding to exercise the jurisdiction. But all must depend upon
the circumstances of the particular case. Among the factors which may be relevant
in this case are:
i) The father is now estopped from denying that the three older children
are habitually resident here. There is no obstacle to their future being
decided in this country, which is undoubtedly the country with which they
had the closest connection until they were prevented from leaving Pakistan
to return here in November 2009.
ii) The basis upon which the father proposed to mount a forum non
conveniens argument in relation to the older children was that the High
Court did not have jurisdiction in relation to Haroon. If it is determined that
the High Court should exercise its jurisdiction in relation to Haroon, that
argument disappears. The father should not be permitted to raise any other
arguments in relation to the older children which he could have raised at
first instance.
Page 24
iii) Nevertheless, arguments as to the appropriate forum in which to
decide Haroon’s future will be relevant to whether it would be right for the
High Court to exercise its inherent jurisdiction based on nationality in his
case.
iv) Among those arguments will be the practicability of the mother
litigating the children’s future in Pakistan, in the light of the findings
already made by the judge. How reasonable is it to expect her to return to
that country, given what happened to her there previously? Conversely, how
reasonable is it to expect the father to return here, where he was born and
has lived for most of his life and has property and other family members?
v) The circumstances in which these children came to be in Pakistan,
and the coercion to which their mother was subject, while not
determinative, are highly relevant factors.
vi) It is troubling that these proceedings have been continuing for so
long without any inquiry being made about how the children are. Children
and Families across Borders (formerly International Social Service) have
helpfully intervened to suggest how this might be done, and the judge may
wish to consider what they say.
66. We are told that the father wishes to file evidence in relation to the issue
which is to be remitted to the judge. However, he must not be permitted to reopen
the factual and legal issues which have been decided against him. He must not be
permitted to take any advantage from his past refusal to take part in the
proceedings, to file or to give evidence, or to obey court orders.
67. The judge has already decided to exercise jurisdiction on the basis that
Haroon is habitually resident here. Should she decide not to exercise jurisdiction
on the basis of his nationality and allegiance, it will become necessary to decide
whether he is indeed habitually resident here. As already explained, this Court
cannot resolve that question without referring it to the Court of Justice. The parties
should therefore have liberty to apply to this Court for a reference to be made in
the event that a decision on the point becomes necessary.
Conclusion
68. The appeal is allowed. The case is remitted to Parker J to consider as a
matter of urgency whether to exercise the Court’s inherent jurisdiction in relation
Page 25
LORD HUGHES
69. I gratefully acknowledge Lady Hale’s exposition of the facts of this case,
and I agree with her about the order which this court should make to dispose of
this appeal. I also respectfully agree with much the greater part of her reasoning en
route to that proposed order. I do not, however, feel able to leave the case without
setting out some observations on the issue of the habitual residence of the youngest
child, which is the question on which the appeal came to this court, and on which
at present the last word in this jurisdiction is that of the majority of the Court of
Appeal. The point is of some importance since although it is unusual for the
habitual residence of a newborn baby to fall for consideration when he has not yet
reached the shores of his family’s established home, both this case and B v H
(Habitual Residence: Wardship) [2002] 1 FLR 388 show that it is by no means
hypothetical. Moreover, although in the present case there exists another possible
basis for the jurisdiction of the English court, similar events to those which have
taken place here could very easily occur in a family which was well established
and settled here, but which did not have British nationality.
70. As to the several other issues in the case it is enough to set out in the
briefest terms my agreement with each of the propositions which follow.
i) The order made by the judge for the return of the children to
England, including the youngest, was an order “…relating to…the
exercise…of parental responsibility” within the terms of Articles 1(1)(b)
and 2(7) of the (directly effective) Council Regulation EC 2201/2003
(“Brussels II revised”).
ii) It follows that the jurisdiction of the English court falls to be
exercised on one or more of the bases set out in Articles 8 to 14 of Brussels
II revised, and that the primary basis is, as provided for by Article 8, the
habitual residence of the child at the time at which the court was seised of
the application by Mother.
iii) The order made by the judge was not a “Part I order” within the
terms of the Family Law Act 1986, and therefore the jurisdiction of the
English court is not confined by that Act to the basis of the habitual
residence of the child.
Page 26
iv) The order made by the judge was made in the course of the court’s
very longstanding wardship jurisdiction over children, which has always
been available in the case of a child who is a British national, irrespective of
the child’s habitual residence or current whereabouts.
v) As a matter of English law, this nationality based jurisdiction should
be exercised with great caution in a case where the habitual residence of the
child in England is not established, but there will be some instances where it
is proper to exercise it.
vi) If it be the case that the youngest child is not habitually resident in
England, he is not habitually resident in any State which is a member of the
European Union. In that event, if it is proper under English law for the
English court to exercise jurisdiction on the basis of his nationality, such
jurisdiction is available to the court within Brussels II Revised through
Article 14.
vii) The judge has not had the opportunity to consider the exercise of
jurisdiction in relation to the youngest child on the basis of his nationality.
The case should be remitted to her to address this possibility, and also for
her to consider Father’s application to stay the English proceedings on the
grounds that Pakistan is on the facts a more convenient and suitable forum
for the determination of the children’s future.
viii) The factors set out in Lady Hale’s judgment at paras 64 and 65 will
be amongst those potentially relevant to the judge’s remitted enquiry. I also
agree that if Father is to be permitted to adduce further evidence it must be
limited to evidence which addresses the remitted issues and does not
attempt to re-open the factual matters on which the judge has already made
findings: see para 66 of Lady Hale’s judgment.
ix) There is no occasion for us to resolve the difficulty presented by
Owusu v Jackson nor its impact (if any) on family cases governed by
Brussels II revised.
Habitual residence: the youngest child
71. This is not the place to attempt a wide-ranging analysis of all aspects of
habitual residence. Indeed the most commonly troublesome questions, namely
those associated with moves from one country to another which one side contends
to be temporary and the other to be sufficiently settled, do not arise in this case.
Page 27
What follows is directed only to the decision of the Court of Appeal in the present
case that there exists a rule which requires that before a person can be habitually
resident in a jurisdiction, he or she must at some time have been physically present
there. Some general considerations must, however, be set out if that issue is to be
addressed.
72. I agree with Lady Hale who has identified the long-standing tension
between the generally accepted proposition that habitual residence is a question of
fact and the desire to provide some guidance on the approach which courts should
adopt when deciding whether it has been demonstrated. A good example is Mozes
v Mozes (2001) 239 F 3rd 1067. At times, the guidance offered comes close to
being framed as propositions of law, although usually this has not been the
intention of the authors. Such intention was disclaimed in Mozes v Mozes and it is
absent also, I think, from the locus classicus in England and Wales of Lord
Brandon of Oakbrook’s speech in Re J (A Minor) (Abduction: Custody Rights)
[1990] 2 AC 562. There Lord Brandon made it clear (at 578G) that the question
whether someone was or was not habitually resident in a particular country
“…is a question of fact to be decided by reference to all the
circumstances of any particular case.”
He then went on to offer a number of general guides to the determination of the
issue. Immediately after the proposition just cited he said this:
“The third point is that there is a significant difference between a
person ceasing to be habitually resident in country A, and his
subsequently becoming habitually resident in country B. A person
may cease to be habitually resident in country A in a single day if he
or she leaves it with a settled intention not to return to it but to take
up long-term residence in country B instead. Such a person cannot,
however, become habitually resident in country B in a single day. An
appreciable period of time and a settled intention will be necessary to
enable him or her to become so. During that appreciable period of
time the person will have ceased to be habitually resident in country
A but not yet have become habitually resident in country B. The
fourth point is that, where a child of J’s age is in the sole lawful
custody of the mother, his situation with regard to habitual residence
will necessarily be the same as hers.”
It will be seen that that immediately following passage offers at least three
generally stated propositions, many of which have since been treated in some
Page 28
quarters as amounting to propositions of law. One is that an habitual residence in
country A may be abandoned in a single day. A second is that habitual residence
in country B cannot be established (or, as English lawyers are prone to say,
“acquired”) in a single day, and a third is that an infant who is in the sole lawful
custody of his mother will necessarily have the same habitual residence as she has
(or, as English lawyers are prone to say, will “derive” his habitual residence from
hers).
73. Lord Brandon’s propositions are, as it seems to me, much better regarded as
helpful generalisations of fact than as propositions of law. He cannot have
intended them to operate as propositions of law without destroying his starting
point, namely that habitual residence is a question of fact, to be determined by
consideration of all the circumstances. However, whether or not that is the correct
analysis of Re J, it is now clear from the jurisdiction of the Court of Justice of the
EU that habitual residence is a question of fact: see below.
74. Consistently with treating habitual residence as a question of fact, it seems
to me that each of Lord Brandon’s supplemental propositions will clearly usually
be true. An émigré flying from Heathrow to a new home in Australia, who has
sold every possession in England and intends to make a permanent home in
Sydney will surely normally no longer be habitually resident in England from the
day of his departure. But it might perhaps be different if he had neglected to
obtain permission from Australia to re-locate, and decided at Dubai that he would
return to England. A person arriving in a foreign country hoping to make his
permanent home there will no doubt in many cases not be regarded as habitually
resident there until he has established himself, with home, occupation, permission
to reside and so on. But if he has pre-arranged all of this and is joining his spouse
and family, it might well be that his habitual residence would be established more
or less immediately on arrival.
75. The same is true of Lord Brandon’s third generalisation, which is of direct
relevance to the present case. One commonly relevant factor in the establishment
of habitual residence is clearly the intention of the individual. But an infant of
very tender years is in no position to form any independent intention. His or her
habitual residence will normally be established by belonging to a family unit
which has habitual residence in a particular place, and the infant will thus share it.
As a generalisation it is therefore plainly true that the infant will normally share
the habitual residence of the person who has lawful custody of him, and this is a
valuable aid to courts. But this is not an invariable rule of law, and it is not too
difficult to envisage factual situations in which this proposition will not be true. If
a young unmarried woman who is habitually resident in State A but whose parents
live in State B becomes pregnant and determines to give birth to her child back at
the home of her parents, and thereafter by agreement with them to leave the child
there to be brought up by them, she will no doubt remain habitually resident in
Page 29
State A. If State A is England she will, by English law, have the ‘sole lawful
custody’ of the child (ie sole parental rights and the right, unless and until a court
intervenes, to determine where the child lives). But neither before or after she
travels back to England after the birth, leaving the child in State B as planned, will
the child will “derive” his habitual residence from hers as a matter of law, nor will
he share it with her as a matter of fact.
76. The trans-national movement of children in the course of disputes about
their upbringing, and the associated forum-shopping by parents and others, is a
major international problem. Its incidence has only grown since the 1980 Hague
Convention, with the increase in cross-border personal relationships and the evergreater ease of international travel. The 1980 Convention may on occasion operate
as a relatively blunt instrument, and no one would claim that its necessarily
summary procedure is incapable of ever resulting in injustice, but its contribution
to controlling this international problem has been immense. As between the large
number of party States, it proceeds upon the basis that in the event of wrongful
removal or retention of a child there should normally be a summary return to the
State of his or her habitual residence and that the necessary, and often finely
balanced, merits decisions which fall to be made are to be made in the courts of
that country. In turn, wrongful removal or retention is to be ascertained by
reference to the rights of the parties under the law of the State in which the child
was habitually resident immediately before the event. This has spawned, in
England at least, a proposition closer than those above to a rule of law, namely that
where two parents have parental responsibility for a child, one of them cannot by
unilateral action alter the habitual residence of the child: see Lord Donaldson of
Lymington MR in the Court of Appeal in Re J (A Minor) (Abduction: Custody
Rights) supra at 572 and Wall J in In re S (Minors) (Abduction: Wrongful
Retention) [1994] Fam 70. The occasion for propounding this ‘rule’ was not so
much the case of wrongful removal but that of wrongful retention. In most cases
of wrongful removal, the habitual residence of the child immediately before
removal will not be put in doubt by the unilateral actions of one parent. But in the
case of wrongful retention, it may. If for example the child, hitherto living with
parent A in State A, is visiting parent B in State B under an agreement for contact,
and whilst there parent B unilaterally makes arrangements for the child to stay
permanently, such as by obtaining immigration rights, enrolling at school and
taking similar associated steps, it may be contended that such steps cause the child
thereafter to be habitually resident in State B. If, additionally, the view is taken
that retention does not occur until the time arrives at which the child is due to
return to State A, the argument can be advanced that by then the child is habitually
resident in State B, where it follows that retention cannot be wrongful. To hold
that parent B’s unilateral actions cannot bring about a change of habitual residence
is one route to ensuring that the 1980 Convention is not made ineffective in such a
case.
Page 30
77. It seems to me important to note this situation, which is not rare. As Lady
Hale explains at paras 39-40, Brussels II revised contains provisions designed for
such a case. Article 10 preserves the jurisdiction of State A not only until habitual
residence has been established in State B but also until either all relevant persons
have acquiesced in the removal/retention or (broadly) a year has passed, the child
is settled and there has been unjustified failure to object, or the courts of State A
have reached a determination inconsistent with the continued exercise of
jurisdiction. But neither under Article 10 nor the 1980 Hague Convention can this
continuing jurisdiction in State A operate if by the time of retention (or even
removal) habitual residence has already changed. What matters most is that State
A can make an effective order for return. This may be either under the 1980
Hague Convention (as chiefly it will be) or outside it, as may well be possible if
the person ordered to make the return is present in State A or has property there (as
here). So what matters is where the child’s habitual residence was immediately
before the removal or retention.
78. I agree with Lady Hale that we are not called upon to resolve this question
in the present case, which must await another day. I also agree that it is apparent
from Article 10 that Brussels II revised contemplates that habitual residence may
shift at some stage after a wrongful removal or retention. It may well be that the
problem identified can be resolved consistently with the effectiveness of the 1980
Hague Convention. It may well be that the correct view is that unilateral acts
designed to make permanent the child’s stay in State B are properly to be regarded
as acts of wrongful retention, notwithstanding that the scheduled end of the child’s
visit has not yet arrived. Such a conclusion is not, to my mind, in any way
precluded by the decision of the House of Lords in Re H (Minors) (Abduction:
Custody Rights) [1991] 2 AC 476, which holds no more than that a specific act of
retention must be identified, and it is consistent with the decision of Wall J in In re
S (supra). The significance of the point here is simply twofold. First, Brussels II
Revised is, notwithstanding that in the event of conflict it prevails over the 1980
Hague Convention (see Article 60), clearly meant to co-exist consistently with that
Convention remaining effective – see for example Articles 10 and 11 – and it
ought to be construed wherever possible with that very important objective in
mind; in particular the concept of habitual residence needs to be construed
similarly in each of the two instruments. Second, providing this approach is
adopted, it is unlikely that even in this situation it is necessary to formulate a rule
of law that a child’s habitual residence cannot unilaterally be changed by one
parent where two parents both have parental responsibility.
79. The general approach advanced above is, I believe, wholly consistent with
the decisions of the CJEU on the approach to habitual residence in Proceedings
brought by A (Case C-523/07) [2010] Fam 42 and Mercredi v Chaffe (Case C497/10PPU) [2012] Fam 22.
Page 31
80. In accordance with its usual practice when dealing with the same issue in
successive cases, the court used substantially the same language in each. The
following principal propositions can be extracted from the decisions.
i) The meaning of ‘habitual residence’ is autonomous, that is to say not
governed by differing national laws on the topic: A’s case at para 34.
ii) One of the great values of habitual residence as a base for
jurisdiction is proximity: A’s case at para 35; by this the court clearly
meant the practical connection between the child and the country
concerned.
iii) The question is one of fact. At para 37 in A’s case, repeated at para
47 in Mercredi v Chaffe the court said:
“The “habitual residence” of a child, within the meaning of article
8(1) of the Regulation, must be established on the basis of all the
circumstances specific to each individual case.”
iv) Simple physical presence is not by itself sufficient. At para 38 in A’s
case the court said:
“In addition to the physical presence of the child in a member state,
other factors must be chosen which are capable of showing that that
presence is not in any way temporary or intermittent and that the
residence of the child reflects some degree of integration in a social
and family environment.”
Those words were substantially repeated in Mercredi v Chaffe at para 49.
v) Those other factors will mainly be, in the case of a child, those which
show ‘some degree of integration in a social and family environment’: see
paras 38 and 44 in A’s case and identical language at para 47 in Mercredi v
Chaffe. Thus, for example, on the facts of A’s case where the issue was
whether the stay was enduring or intermittent, they are likely to include, as
the court said at paras 39 and 44:
“the duration, regularity, conditions and reasons for the stay on the
territory of a member state and the family’s move to that state, the
Page 32
child’s nationality, the place and conditions of attendance at school,
linguistic knowledge and the family and social relationships of the
child in that state must be taken into consideration.”
This formulation was preferred by the court to that suggested by the
Advocate General in A’s case, namely the ‘actual centre of interests’ (see
AG at para 38).
vi) Similarly, in the case of a child, the intention of the parent or parents
will normally be a relevant factor. At para 40 in A’s case, repeated at para
50 in Mercredi v Chaffe, the court said:
“the intention of the person with parental responsibility to settle
permanently with the child in another member state, manifested by
certain tangible steps such as the purchase or rental of
accommodation in the host member state, may constitute an indicator
of the transfer of the habitual residence”
On the facts of Mercredi v Chaffe where the child was a babe in arms and
the issue was less whether the presence was intermittent than whether there
was sufficient endurance to amount to habitual residence, this factor was of
greater significance.
vii) The duration of the stay is a relevant factor but is not determinative.
In Mercredi v Chaffe at para 51 the court said:
“In that regard, it must be stated that, in order to distinguish habitual
residence from mere temporary presence, the former must as a
general rule have a certain duration which reflects an adequate
degree of permanence. However, the Regulation does not lay down
any minimum duration. Before habitual residence can be transferred
to the host state, it is of paramount importance that the person
concerned has it in mind to establish there the permanent or habitual
centre of his interests, with the intention that it should be of a lasting
character. Accordingly, the duration of a stay can serve only as an
indicator in the assessment of the permanence of the residence, and
that assessment must be carried out in the light of all the
circumstances of fact specific to the individual case.”
The use of the word ‘permanence’ (which did not appear in A’s case) must,
for the reasons explained by Lady Hale at para 51, be read together with the
Page 33
careful analysis of Sir Peter Singer in DL v EL [2013] EWHC 49 (Fam),
[2013] 2 FLR 163, endorsed by the Court of Appeal at [2013] EWCA Civ
865.
viii) Generally speaking, an infant will share the habitual residence of the
parent(s) with whom he or she lives. In Mercredi v Chaffe at paras 54 – 55
the court said:
“54. As a general rule, the environment of a young child is
essentially a family environment, determined by the reference
person(s) with whom the child lives, by whom the child is in fact
looked after and taken care of.
55 That is even more true where the child concerned is an infant. An
infant necessarily shares the social and family environment of the
circle of people on whom he or she is dependent. Consequently,
where, as in the main proceedings, the infant is in fact looked after
by her mother, it is necessary to assess the mother’s integration in her
social and family environment.”
ix) In exceptional circumstances a person may have no habitual
residence: A’s case at para 43.
81. It follows from the above that I respectfully agree with the helpful summary
given by Lady Hale at para 54.
82. To the extent that the Court of Appeal in the present case held that the
youngest child did not ‘derive’ his habitual residence from his mother as a matter
of law, I agree, for the reasons set out above. But in my view the court was wrong
to attribute the argument for Mother to a contention for dependent habitual
residence. This is essentially what Patten LJ did at para 61 when he considered and
rejected the case for a special rule for newly born children:
“One could construct a rule by which a newly born child was
presumed to take on birth the habitual residence of its parents or
custodial parent. But the rule would be a legal construct divorced
from actual fact which is what the court in B v H (Habitual
Residence: Wardship)… said that it was anxious to avoid and which
has been rejected in all the earlier decisions of this court. It would
also run contrary to this court’s acceptance in cases such as Al
Page 34
Habtoor v Fotheringham… that a child’s habitual residence is not to
be treated as necessarily the same as that of his parents.”
83. I entirely agree that no such rule exists. But it does not follow that England
was not the youngest child’s habitual residence and I am unable to see that the
application of the approach set out above produces the conclusion to which the
majority of the Court of Appeal came, namely that he could not be habitually
resident in England simply because he had never been physically present here.
84. Both Patten and Rimer LJJ proceeded on the basis that it is a minimum
legal requirement of habitual residence that there has at some time been physical
presence. The decision amounts to a rule of law at least to the extent that it
propounds a general proposition that factual habitual residence cannot be achieved
without physical presence at some time. Rimer LJ put it thus at 38:
“As regards the youngest child, H, the position is different. He was
born in Pakistan and has never set foot in England and Wales. In
respectful disagreement with Thorpe LJ, I agree with Patten LJ, for
the reasons he gives, that it follows that H cannot be said to have
been habitually resident in England and Wales at the date of either
order. The decisions of this court in In re M (Abduction: Habitual
Residence) [1996] 1 FLR 887 and Al Habtoor v Fotheringham
[2001] 1 FLR 951 show that the question of whether a person is
habitually resident in a particular country is one of fact. They further
show that an essential ingredient in the factual mix justifying an
affirmative answer is that the person was at some point resident in
that country; and that it is not possible to become so resident save by
being physically present there. If there has been no residence there,
there can be no habitual residence there.”
For his part, Patten LJ, at 47, derived from the same cases a “boundary” to the
effect that:
“The acquisition of habitual residence in any country requires the
adult or child in question to be physically present there.”
He returned to that proposition at 60, saying:
“As the cases recognise, residence denotes and involves a physical
presence.”
Page 35
85. Both judgments thus relied upon passages in In re M (Abduction: Habitual
Residence) [1996] 1 FLR 887 and Al Habtoor v Fotheringham [2001] FLR 951.
In the former, parents of Indian origin who were living in England agreed on their
separation to send their son to India for his minority, to be brought up by his
grandparents. Mother subsequently changed her mind and sought to make the
child, still in India, a ward of the English court. The issue was whether her
decision changed the habitual residence of the boy back to England. The argument
was that it did because the continuing assent of both parents was necessary as a
matter of law to his continuing habitual residence being in India. That argument
was rejected, as it is clear it would be today both in Europe and in England. It is
perfectly correct that Sir John Balcombe said this at 895:
“Before a person, whether a child or an adult, can be said to be habitually
resident in a country, it is clear that he must be resident in that country. Of
course, residence does not necessarily require physical presence at all times.
Temporary absence on holiday, or for educational purposes (as in Re A),
will not bring to an end habitual residence. But here the judge found as a
fact, and on ample evidence, that K became habitually resident in India. He
has never to this day come back to England. As a matter of fact, he has not
been resident in England since he went to India in February 1994.
Bracewell J held that the mother’s change of mind both brought to an end
K’s habitual residence in India and gave him an habitual residence in
England.
I have the gravest doubts whether the first proposition is correct. Clearly,
the mother’s change of mind could not alter the fact that he was, and is,
physically resident in India. Whether her change of mind could alone alter
the ‘habitual’ nature of that residence I very much doubt, but in any event it
is not necessary finally to decide that point on this appeal, since the one
thing about which I am quite clear is that the child’s residence in India could
not become a residence in England and Wales without his ever having
returned to this country. As I said before, the idea that a child’s residence
can be changed without his ever leaving the country where he is resident is
to abandon the factual basis of ‘habitual residence’ and to clothe it with
some metaphysical or abstract basis more appropriate to a legal concept
such as domicil.”
To like effect, Millett LJ said simply at 896:
“While it is not necessary for a person to remain continuously present in a
particular country in order for him to retain residence there, it is not
Page 36
possible for a person to acquire residence in one country while remaining
throughout physically present in another.”
It was sufficient for the decision that that independent habitual residence was not
altered simply by the wish of one parent. It is unsurprising that the fact that the boy
had remained in India was treated as an additional reason why his habitual
residence was still there. He had clearly established an habitual residence
independent of his parents. The court did not have before it the case of an infant
who has no independence of his parents but is by contrast integrated into the
family unit of one of them.
86. In the later case of Al Habtoor v Fotheringham the whole family unit of
which the child was part had emigrated to Dubai where the boy’s father lived.
Some months later the mother and stepfather became disenchanted with Dubai,
quarelled with father and returned to England without the boy. On the question of
habitual residence, the issue was whether the boy’s had reverted to England
because Mother’s had. That was an argument for dependent (or legally “derived”)
habitual residence, which the court rightly rejected. In doing so, Thorpe LJ cited
the passages above quoted from Re M. They were clearly cited for the rejection of
dependent habitual residence. Once again, the fact that the boy remained in Dubai
was an additional reason why his habitual residence remained there. Once again,
the court did not have to consider the case of an infant who was an integrated
member of a family unit which was habitually resident in a particular place and did
not change it. In the present case Thorpe LJ clearly did not regard either this
decision or Re M as binding the Court of Appeal to hold that the youngest child
could not be habitually resident in England because he had not yet physically
reached these shores, for he dissented from the decision that it did. Particularly
given his unrivalled experience of all aspects of cross border family issues, his
views deserve considerable weight. This court is not in any event bound even if
the Court of Appeal was, but for my part I agree with him.
87. Next, the majority in the Court of Appeal treated the CJEU cases as
inconsistent with the youngest child having an habitual residence in England.
Patten LJ (with whom Rimer LJ agreed) said at para 62 that such a proposition
“would also clearly be inconsistent with the approach set out in
Mercredi v Chaffe …. which contemplates a detailed examination
of whether a child’s presence in a particular jurisdiction involves a
sufficient engagement with a settled family life in that place as to
amount to habitual residence.”
Page 37
Of course the enquiry in both A’s case and Mercredi v Chaffe would involve a
detailed examination of the connection or engagement of the child with a settled
family life in Finland or France respectively, but that was because the issue in
those cases was whether the family unit as a whole had sufficiently settled to be
habitually resident in the new country. In neither case did the court have to
consider the case of an infant who is an integrated member of a family unit which
was habitually resident in State A although currently detained against the will of
the adult in State B. Whilst in both cases the court incorporated into its decision,
at paras 38 and 49 respectively, the need for other evidence “in addition to mere
presence” it is crystal clear that this was said in order to demonstrate that mere
presence was not automatically sufficient. Neither court was concerned with the
question whether presence is always necessary.
88. The CJEU emphasised in both cases the importance of examining the
degree of integration of the child into a social and family environment. It
emphasised in Mercredi v Chaffe at paras 54 – 55, cited above at para 80(viii), the
manner in which an infant’s environment is essentially a family one. In the
present case, the youngest child was born into a family unit which consisted of his
mother and siblings; Father had been, when in England, estranged from it and
living elsewhere. This family unit had its habitual residence in England. So, in my
view, did the youngest child. He similarly would have shared their habitual
residence if he had been born unexpectedly whilst mother was on holiday in Spain,
or at sea on a cruise or in transit. In any of these situations, if one asked anyone
but a lawyer where the newly born child was habitually resident, the answer
would, in my view, have been “With his mother, brother and sisters of course”.
The same would be true, as it seems to me, if he was born to his mother at a time
when she was running away from home and temporarily abroad, like the mother in
flight from Slovakia in In re T (a Child)(Care Proceedings; Request to Assume
Jurisdiction) [2013] EWHC 521 (Fam); [2013] Fam 253.
89. The slightly different facts of H v H (Jurisdiction to Grant Wardship)
[2011] EWCA Civ 796; [2012] 1 FLR 23, to which we were referred after the
hearing, illustrate the factual nature of the enquiry. There the British father, of
Afghan origin, travelled back to Afghanistan to marry. His wife, the mother,
planned to come to England but had never left Afghanistan when their first child
was born. Her subsequent journey (alone) to England may have resulted in her
own habitual residence being established in England, but clearly could not affect
that of the child, which was understandably conceded by experienced counsel to be
in Afghanistan. There was in that case no family unit with an habitual residence in
England, into which the child was born. Nor was there any question of Mother
being detained in Afghanistan by coercion. There was rightly no suggestion in the
Court of Appeal of any rule of law either that the child “derived” habitual
residence from one or other parent, or that the fact that the child had never been
Page 38
present in England was alone enough to resolve the question. Jurisdiction based
on the nationality of the child was not advanced in that case.
90. The sole question on this part of this case is whether the factual enquiry
required is overlain by a rule which prevents a person from being habitually
resident in a place where he has not yet set foot. I see no occasion for any such
rule. There is, I entirely agree, also no ‘rule’ automatically ascribing habitual
residence by dependence to a place to which the child has never been. There is a
factual enquiry into the integration of the family unit to which he or she belongs,
and that may well yield the conclusion that the child shares the habitual residence
of that unit even if he has not yet achieved physical presence there, especially if he
is being prevented by coercion or other force majeure from doing so. The decision
of the Court of Appeal in this case involves a rule or general proposition because it
necessarily excludes habitual residence without some past physical presence. The
contrary approach, which to my mind is correct, involves no rule or generality at
all, save for the advice to look, in the case of an infant, at the position of the family
unit of which he is part. This does not involve a rule for dependent habitual
residence. It merely asserts the possibility that habitual residence may exist in a
State which is the home of the family unit of which the infant is part, and is where
he would be but for force majeure.
91. It is true of course that if one focuses on the position after a year or more in
Pakistan it is no doubt the case that one will find links and a degree of integration
perforce experienced by the youngest child in that country. He has extended
family there. He is physically cared for there. But that is, in this case, only
because he, as well as his siblings, have been wrongfully detained there by
coercion.
92. It is also of course true that in the great majority of cases, habitual residence
is characterised by actual residence, that is to say physical presence. But it is well
established that although rules of law are generally inappropriate the concept of
habitual residence is necessarily to some extent a legal one; as Patten LJ said at
para 59, it is a jurisdictional concept. And it is well established that habitual
residence can and often does co-exist with actual current absence. If current
physical presence is not essential, then so also can habitual residence exist without
any physical presence yet having occurred, at least if it has only been prevented by
some kind of unexpected force majeure.
93. There can be no doubt about the jurisdiction of the English court in relation
to the elder siblings. This is not because of any rule of law which prevents one of
two parents from unilaterally altering the habitual residence of a child. It is
because as the 1980 Hague Convention requires, in the case of abduction, whether
removal or, as here, retention, the acid test is habitual residence immediately
Page 39
Page 40
before the event. They were resident in England. They went to Pakistan only for a
three week holiday. There they have been wrongfully retained. For the same
reason, Article 10 of Brussels II revised maintains the jurisdiction of the English
court. The only difference between the elder children and the youngest is the
accidental fact that he has not yet reached the shores of his homeland. The reason
why he has not done so is because he has been wrongly detained elsewhere by
coercion. In my view he is, like them, a member of a family unit which is firmly
based in England and when born into it he was like the rest of its members
habitually resident there. His wrongful retention commenced immediately
afterwards. Indeed, if the Court of Appeal is right, he could now be removed to
another country without the removal being wrongful; such successive
transportation of children to avoid enforced return is by no means unknown. There
would, in my respectful view, be a serious failure of the protection afforded by the
1980 Hague Convention and Article 10 if a newly born child in this situation is
held to have no habitual residence and thus to be incapable of wrongful removal or
retention. I am unable to see any sufficient reason for such a conclusion.
94. I accept of course that, this view being a minority one, it cannot be said to
be acte clair, so that if this case or some other were to turn on the point, reference
to the CJEU would be indicated. At present, this case does not turn on it.
