A recent case has drawn helpful attention to the criteria for a child to be considered to be habitually resident in this country and therefore within the jurisdiction of the Family Court of England and Wales.
The case involved a seven-year-old boy (CX) who had been subject to proceedings between his parents, which began in September 2020.
In August 2021, a Child Arrangements Order was made that CX live with his father. However, at the time that order was made, the mother had already clandestinely travelled with CX to the Turkish Republic of Northern Cyprus. The mother (and CX) remained in the Turkish Republic of Northern Cyprus with the mother refusing to return to England.
The mother subsequently accepted that she had positively mislead everyone (including the Court) on moving with CX out of the jurisdiction.
Upon the Court learning of what had happened, it was declared that CX was habitually resident in England and Wales (it had been accepted that he was previously by both parents) and CX was also made a Ward of Court with the mother ordered to return him.
The mother sought to challenge that the English Court continued to have jurisdiction suggesting amongst other things that given that CX had now lived in the Turkish Republic of Northern Cyprus for some time that he was habitually resident there. Included in the arguments made was the suggestion that the Court could not make CX a Ward of Court at the time that they did because by that time it was suggested CX had lost his habitual residence in this country.
In this case, the Court very helpfully restated the principles on habitual residence from previous cases, which include the following: –
- The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment.
- The test is a factual one with factual enquiry focusing on the circumstances of the child most relevant to their habitual residence.
- The test for habitual residence is shaped by the child’s best interests and in particular the practical connection between the child and country concerned.
- It is possible for a parent to change a child’s habitual residence without the consent of the other parent.
- Whilst the investigation is child-focused, a child, particularly a younger child, may well share the same habitual residence as the parent(s) who care for them.
- Parental intention is relevant but not determinative.
- Usually a child gains habitual residence at the same time as losing a previous habitual residence.
- Full integration in a social or family environment is not required. Sufficient integration is required.
- Habitual residence may be acquired swiftly depending on the circumstances.
- Stability of residence is important, not whether it is permanent.
- It is in a child’s best interests to have a place of habitual residence and so a finding that the child had no habitual residence would be highly unlikely.
The Court looked at the evidence in the case concerning CX and concluded that he remained habitually resident in England and Wales up to and including the date of the issue of the inherent jurisdiction application which had resulted in the Court making CX a Ward of Court.
The Court considered previous case law and the conclusions they reached that the date on which habitual residence of a child should initially be determined as the date on which proceedings were commenced.
The inherent jurisdiction proceedings had been started after it was known that CX had been taken to the Turkish Republic of Northern Cyprus. The Court considered whether the date of the commencement of those proceedings affected whether the Court had jurisdiction under its inherent jurisdiction. The Court concluded that as it had found that CX was habitually resident in England at the time when the application under the inherent jurisdiction was made, the Court had jurisdiction in the inherent jurisdiction proceedings as well as the Children Act proceedings.
Jurisdiction can be lost if habitual residence of a child moves to a contracting state (with the Hague Convention) but if the move is to a non-contracting state the original state can retain jurisdiction.
An argument put forward on behalf of the mother was that both the Children Act and the inherent jurisdiction proceedings should be dismissed, it being said that they are futile because CX was currently beyond the reach of the Court. The Court considered that it was not futile to maintain the Wordship and the existing return orders. The Court considered they sent a clear message that CX ought to be returned to this jurisdiction. However, the Court recognised that in so far as the Children Act proceedings were concerned given that final orders under the Children Act could not at this stage be made, then the continuation of those proceedings served no ongoing purpose. The Court considered that CX’s best interests could be protected within the inherent jurisdiction proceedings (which were stayed upon the basis that they could be restored within seven days of CX returning to the jurisdiction) and the Children Act proceedings could be concluded.
This case is a further illustration of the importance of and factors involved in determining habitual residence of a child. If you face a similar situation and need support please contact our Family Law team on 0345 450 5558 or enquiries@stephens-scown.co.uk