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Home > Judgments > 2012 archive

Re I (Habitual Residence) [2012] EWHC 3363 (Fam)

High Court application for residence and prohibited steps orders and orders under the inherent jurisdiction. Judgment on the preliminary issue of habitual residence to determine the jurisdiction of the court.

 M, a child of Nigerian origin, had been primarily raised in England by his uncle and aunt, to whom the parents had given authority by way of an informal document. After five years, the parents (who had had occasional contact) took the child under the guise of an overnight stay and covertly removed him from the jurisdiction of the court, travelling to Dubai and thence on to Nigeria. The aunt and uncle immediately applied for orders for residence and the child's return. Baron J warded the child, determined that he was habitually resident in England and Wales and ordered a further hearing.

The matter came before Jackson J who dealt exclusively with the questions of habitual residence.and jurisdiction.

The parents argued that they had rescinded the letter of authority with a further document and contended that, as sole holders of parental responsibility, they were (a) entitled to have removed M without the consent of the uncle and aunt and (b) by their "will and action" in removing M, his habitual residence in England and Wales had been ended.

The aunt and uncle asserted that the child remained habitually resident in the jurisdiction when the applications were issued, notwithstanding that he was, by that time, physically elsewhere.

Jackson J noted the governance of issues of jurisdiction by Council Regulation (EC) No 2201/2003 (BIIR) and that this accorded with sections 1(2) and 3(1)(a) of the Family Law Act 1986. He then went on to conduct an analysis of the applicable European and domestic case law and concluded that the determination of habitual residence was a question of fact, involving the assessment of facts of "all kinds", some more and some less tangible than others, including the "fact" of whether particular acts were or were not legal. Unless specifically mandated, no one kind of fact had automatic precedence over another.

He then set out the facts that he had found to be relevant, including: the parents' involvement in M's life had been limited and was secondary to that of the aunt and uncle, they (along with M) had the right to respect for their family life under Article 8 ECHR, the removal of M had been covert, the challenge to it had been immediate and the unusual aspects of M's family situation required that respect be paid to his "individuallity " rather than treating him as an "adjunct" to any of the adults.

Weighing up all the matters, in respect of the narrow issue of jurisdiction (and quoting from  Mercredi v Chaffe that it could not be "said that their will determines the element of volition involved in the concept of habitual residence"), the learned judge concluded that this was not a case where the parents had any right to change M's habitual residence simply by an "exercise of will".

Accordingly, he found that M was habitually resident in England and Wales when the proceedings were issued and the court therefore had jurisdiction.

Having given judgment in another similar case during the same week, Jackson J went on to observe that both cases were illustrative of the factual similarities and differences that deteremined questions of habitual residence.

Summary by Katy Rensten, barrister, Coram Chambers

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Case No: FD12P02462
Neutral Citation Number: [2012] EWHC 3363 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY

RE I (A CHILD: HABITUAL RESIDENCE)
Date: 3 December 2012

Before :
THE HONOURABLE MR JUSTICE PETER JACKSON
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Between :
Mr and Mrs A Applicants
-And-
Mr and Mrs I Respondents
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- - - - - - - - - - - - - - - - - - - -

Mr Mark Rawcliffe (instructed by Barrett & Thomson) for the Applicants
Ms Katy Chokowry
(instructed by Dawson Cornwell) for the Respondents

Hearing date: 14 November 2012
Judgment date: 3 December 2012
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JUDGMENT
This judgment consists of 39 paragraphs.  Pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken and copies of this version as handed down may be treated as authentic.

Mr Justice Peter Jackson:
1. The issue in this case is whether the courts of England and Wales have jurisdiction to entertain proceedings concerning a 7½ year old boy known in this judgment as M.  The applicants, Mr and Mrs A, are M's maternal uncle and his wife.  The respondents, Mr and Mrs I, are M's parents. 

2. The applications are an application under the Children Act 1989 for residence and prohibited steps orders issued in the County Court on 6 September 2012 and later transferred to the High Court, and an application to this court for orders under the inherent jurisdiction, issued on 30 October. 

3. The question of jurisdiction depends upon whether M was habitually resident in England and Wales at the time the proceedings were issued.

The facts
4. M's parents are Nigerian nationals living in Nigeria.  The mother works for a telecommunications firm and the father for a bank.  M's maternal uncle is a Nigerian national with leave to remain in the United Kingdom and the aunt is a British citizen.  They live in the London area. 

5. M was born in England in March 2005 and was then taken to Nigeria by his parents at the age of 6-8 weeks.  In August 2007 they brought him back and placed him in the care of the uncle and aunt.  When doing so, they signed a document in these terms:

TO WHOM IT MAY CONCERN RE: [M - FULL NAME GIVEN]

We [names given], parents of the above named child, wish to make it known To Whom It May Concern that [the uncle and aunt] are guardian and Next of Kin to [M] hence fault. [sc. henceforth]

Any correspondence concerning the child should be directed to them.

We are through this letter giving our consent for them to take responsibility of the child [M].

Yours Sincerely,

Mr & Mrs [I]
(Signed)

6. From that time, the entire responsibility for M's day-to-day upbringing fell upon the uncle and aunt.  They made all the necessary arrangements for M, looking after him and arranging his schooling.  The involvement of the parents consisted of occasional visits, mainly by the mother, and some contribution towards nursery fees.  The uncle and aunt state that in five years the mother visited M no more than ten times and the father no more than four times. 

7. Over the summer of 2012, the uncle and aunt also looked after M's older brother, who lives in Nigeria with the parents.  At the end of August, the mother came to visit and on Sunday 2 September, activities for the following week were discussed.  The mother said she wanted to keep M in London overnight, but the uncle and aunt did not agree.  According to the uncle and aunt, the activities that were decided on were a visit to Madame Tussaud's on the Monday, other activities on Tuesday, and a trip to Legoland on Wednesday, before M's school term began on the Thursday.

8. The mother collected the boys on Monday 3 September, but she did not return them.  Instead, she flew with them to Dubai that evening, and travelled on to Nigeria, arriving on 4 September.

9. The uncle and aunt immediately contacted the police and social services and then applied to the County Court on 6 September.  They were granted a residence order and an order requiring the parents to return M.  A further hearing date of 27 September was set. 

10. On 26 September, the parents wrote to the court, expressing their opposition and stating that they had resumed care of M in his interests, that he was now settled in Nigeria, and that they could not attend hearings.  They made some criticisms of the uncle and aunt's character.  On 27 September, the matter was transferred to the High Court.  By this time the uncle and aunt had obtained legal representation.

11. On 30 October, the matter came before Mrs Justice Baron.  She heard from the mother by telephone.  The mother said that religiously and culturally it was their decision and that she had not given her son to the uncle and aunt.  She was asked whether she had told them that she was taking M to Nigeria.  She said that she had told them earlier and, referring to the actual removal, that 'she had decided to take a chance and walk.' 

12. Mrs Justice Baron found that M was habitually resident in England and Wales and that there were issues that needed to be resolved here.  She made M a ward of court and directed the parents to return him no later than 7 November.  She gave directions for evidence to be filed and for a further hearing, which took place before me.

13. The mother said that the uncle and aunt knew that she would be taking M to Nigeria.  Mrs Justice Baron stated that she was not satisfied that the uncle and aunt had consented.

14. Further to that issue, the parents have now produced a document bearing the date 1 August 2012 and reading as follows:

Re: TO WHOM IT MAY CONCERN RE: [M - FULL NAME GIVEN]

We [names given], parents of the above named child, wish to make it known To Whom It May Concern that [the uncle and aunt] are no longer guardian and Next of Kin to [M].

Any correspondence concerning the child should be directed to his Parents [names].

Yours Sincerely,

Mr & Mrs [I]
(Signed by the mother)

15. For some reason this document bears the name of the aunt's former general practitioner as recipient of a copy.

16. On behalf of the parents it is said that this was sent and given to the uncle and aunt.  The uncle and aunt say that they first saw it as an attachment to the parents' statements on 13 November.  On the available evidence, I believe this to be more likely.

17. There has been an exchange of statements, but the parents have not taken the opportunity to provide a full factual account.  Instead, they have rested on their challenge to the court's jurisdiction.

18. In general summary, the picture is that prior to the covert removal of M, the parents, who possess sole parental responsibility, had for many years not exercised it to any real extent, but had instead delegated it almost entirely to the uncle and aunt, who have exercised parental responsibility in reality without possessing it in the legal sense. 

19. I turn to consider the effect of these facts upon the determination of M's habitual residence as at 6 September 2012.

The law: habitual residence
20. Jurisdiction is governed by Council Regulation (EC) No 2201/2003 ('BIIR') whose provisions apply generally and not (unless specified) only between Member States.  Article 8 provides that:

'The courts of a Member State shall have jurisdiction in matters of parental responsibility  over a child habitually resident in that Member State at the time the court is seised.'

21. This accords with the terms of the Family Law Act 1986, which by ss.1(2) and 3(1)(a) provides jurisdiction on the basis of habitual residence.

22. In J (A Minor) (Abduction: Custody Rights) sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442 concerned a child aged 2 who was removed from Australia to England by his mother, who was the sole holder of parental responsibility.  At 454, Lord Brandon said this:

In considering this issue it seems to me to be helpful to deal first with a number of preliminary points. The first point is that the expression 'habitually resident', as used in Art. 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. 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. (emphasis supplied)

23. The last of Lord Brandon's statements was explained by Balcombe LJ in Re M (Minors)(Residence Order: Jurisdiction) [1993] 1 FLR 495 at 500:

Where he refers to the child being in the 'sole lawful custody' of the mother he was clearly using custody in the sense of physical possession or care, as was the fact in that case. I do not read his words as intending to suggest that the habitual residence of a child is necessarily the same as that of the parent who alone has parental responsibility, notwithstanding that the child may have been living apart from that parent for a period which may have lasted for several years. That would be inconsistent with his second point that habitual residence is a question of fact. All he was saying was that where a young child is in the physical care of a mother who alone has parental responsibility for the child, then normally the child's habitual residence will be the same as hers, since it is her will that determines the element of volition involved in the concept of habitual residence.

24. In Re M, a mother with sole parental responsibility had sent her children (aged 7 and 6) to live with her parents in Scotland against a background of child protection concerns in England.  She had regular contact.  There was then a dispute as to the length of time that the children should remain in Scotland.  After 9 months, during a period of holiday contact in England, the mother decided that she would not return them. The grandparents began proceedings in Scotland and on the same day the mother issued proceedings in England.  The English judge accepted jurisdiction.  The Court of Appeal dismissed the grandparents' appeal.

25. More recently, the European Court of Justice's decision in Mercredi-v-Chaffe [2011] 1 FLR 1293 (CJEU) contains the following passage:

46. Since the articles of the Regulation which refer to 'habitual residence' make no express reference to the law of the Member States for the purpose of determining the meaning and scope of that concept, its meaning and scope must be determined in the light of the context of the Regulation's provisions and the objective pursued by it, in particular the objective stated in recital 12 in the preamble to the Regulation, that the grounds of jurisdiction established in the Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity.

47. To ensure that the best interests of the child are given the utmost consideration, the Court has previously ruled that the concept of 'habitual residence' under Article 8(1) of the Regulation corresponds to the place which reflects some degree of integration by the child in a social and family environment. That place must be established by the national court, taking account of all the circumstances of fact specific to each individual case (see A, paragraph 44).

26. There are welfare-based reasons for jurisdiction being based on habitual residence, referred to by the ECJ as being particularly based on the criterion of proximity.  I take this to mean closeness, and not just in the geographical sense. 

27. There are some circumstances, not applicable to this case, in which a loss of habitual residence cannot be brought about by a wrongful removal.  In cases involving a wrongful removal from one Member State to another, Art. 10 BIIR provides that habitual residence in the first state is not lost until it is acquired in the second, along with other conditions including residence in the second state for at least a year.  This somewhat reflects the position of jurisdictional disputes concerning territories within the United Kingdom under s.41 FLA 1986. 

28. In conclusion, the determination of issues of habitual residence is therefore a question of fact.  The assessment must survey facts of all kinds.  Some will consist of events, some will arise from less tangible things such as feelings, relationships and intentions, and others will concern legal rights and wrongs.  As to the last, whether something is legal or not is a fact.  But unless there is a specific mandate for doing so, the overall assessment does not give automatic precedence to one kind of fact over another.  In particular, there may be circumstances in which habitual residence can be lost following an unlawful removal (for example, with the passage of time), and circumstances in which it will not be lost following a removal that is technically lawful (for example, removal by a parent with sole parental responsibility who has no actual relationship with the child).

Submissions
29. At the outset, Ms Chokowry on behalf of the parents asked the court to adjourn to hear oral evidence, the parents and child remaining in Nigeria.  I did not take this course, although I allowed substantial extra time for further instructions to be taken.  Reviewing the matter now, there is no good reason to have adjourned the hearing.  The parents had had a month to respond to the proceedings and had been legally represented for two weeks.  They have had a fair opportunity to present their case and there are no gaps in the court's knowledge that would be likely to alter the overall assessment.

30. In an able argument, Ms Chokowry then asserted that as the sole holders of parental responsibility, the parents were entitled to remove M, with or without the agreement of the uncle and aunt.  They had delegated day-to-day decisions, not decisions about where the child was to live.  That delegation ended with the document dated 1 August, whether or not its contents were ever communicated to the uncle and aunt.  The parents' will and action in removing M brought his habitual residence in England to an immediate end upon at the moment of his departure on 3 September.  The uncle and aunt had no rights and no standing.

31. Ms Chokowry did not advance the argument previously made by the parents' solicitors to the effect that the uncle and aunt's case should fail because they lacked rights of custody under the Hague Convention.  She acknowledged that this was not the benchmark when considering the issue of habitual residence.

32. The uncle and aunt contend that M was habitually resident here at the time of their application; they seek, and have indeed been granted at previous hearings, orders for residence and for M's return.

Discussion and conclusion
33. Approaching the matter as at 6 September 2012, I find that the relevant facts are these:

1. M is a Nigerian citizen aged seven who has lived in England for five years between August 2007 and 3 September 2012.  He has lived in the same area and has an established network of friends and activities.

2. His family life revolves around his uncle and aunt, his primary carers, under day-to-day authority delegated by the parents in 2007.  During this period, he did not return to Nigeria.

3. The uncle and aunt qualify to make an application for a residence order as of right, having looked after M for three years, but they did not so.

4. His parents are sole joint holders of parental responsibility for M, but their involvement over the past five years was limited, and in terms of M's day to day life and relationships, very much secondary to that of the uncle and aunt. 

5. The uncle and aunt and M had a right to respect for their family life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms.  So, of course, do the parents, by virtue of being parents.

6. M's removal by the mother was covert in order to make sure that the uncle and aunt would not be able to prevent it.  The parents consider that they were acting within their rights. 

7. The uncle and aunt took immediate steps to challenge the removal, doing so within three days.  I regard the subsequent application as part of the same legal process, but if I am wrong about that, the passage of time until the further application of 30 October is of no real significance. 

8. The unusual aspects of M's family situation call for particular respect to be paid to his individuality as opposed to treating him as an adjunct to any of the contending adults.  From his perspective, it will have been a considerable surprise to have been removed from his long-term home without any preparation or goodbyes to his primary carers, friends or school.

34. M's overall family situation is comparable to that of other children of his cultural background who are placed by parents for long periods with members of their extended family.  Nonetheless, after such a lengthy period as five years, that consideration cannot count for much in relation to the assessment of his habitual residence.

35. Weighing these matters up, I attach considerable weight to the length of time that M has lived a settled life in England and to his ties to the uncle and aunt.  The united position of his parents also carries weight, and might prevail in any welfare assessment.  However, when considering the narrower issue of jurisdiction, I find that this is not a case in which the parents had any right to change M's habitual residence simply by an exercise of will.  They were not his physical carers and as a matter of fact his habitual residence has not automatically followed theirs.  For the past five years M has been habitually resident in England and Wales, while they have been habitually resident in Nigeria.  To quote from Mercredi (above), it cannot be said that their will "determines the element of volition involved in the concept of habitual residence".  Their intentions and actions in removing him on 3 September did not deprive M of his ties to this country, which create a proximity that entitles him to a proper consideration of his best interests.

36. The case is distinguishable on its facts from Re M, where the children were in a short term placement with family members within the UK.  

37. I accordingly find that M was habitually resident in England and Wales at the time these proceedings were issued and that as a result this court had jurisdiction to make the orders that it did.

38. All that has been decided is that this court has jurisdiction over M.  Whether and if so how it should exercise its powers is a matter that will now be further considered.  I invite the parties' written submissions on what further orders should now follow.

Footnote
39. By coincidence, during the week that this hearing took place, I also heard the matter of Re J [2012] EWHC 3364 (Fam), where the issue was also whether the court had jurisdiction in the face of an assertion that a child's habitual residence had been lost as a result of a covert removal.  The cases illustrate the similarities and the differences in the facts that determine the question of habitual residence.
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