Family Law Hub

Re I (A Child: habitual residence) [2012] EWHC 3363 (Fam)

  • In a tweet: Habitual residence is a question of fact

    Summary: The question of a child's habitual residence is, once again, considered by the courts.  

    The applicants were Mr and Mrs A, the child's ("M") maternal uncle and aunt. The respondents were Mr and Mrs I, M's parents. Mr and Mrs A applied for residence of M together with a prohibited steps order; their applications were made in September 2012. They then applied for orders under the High Court's inherent jurisdiction in October 2012.  

    M's parents were Nigerian nationals living in Nigeria. Mr A was also Nigerian but with leave to remain in the UK; his wife was a British citizen. M had been born in England but had been taken to Nigeria when he was only a few weeks old; his parents had then brought him back to the UK when he was about two and a half years old and had placed him in the care of Mr and Mrs A. At that time, they had signed a document  which read: 

    "To whom it may concern: [M] 

    We [Mr and Mrs I], parents of the above named child, wish to make it known To Whom It May Concern that [Mr and Mrs A] are guardian and Next of Kin to [M] hence fault [sic]. 

    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" 

    From that time on, the entire responsibility for M's day-to-day upbringing had fallen upon Mr and Mrs A; his parents occasionally visited and they made a financial contribution towards M's nursery fees. Over summer 2012, Mr and Mrs A had also looked after M's older brother who, ordinarily, lived in Nigeria.  

    At the end of August 2012, Mrs I had come to England to see M; she had wanted to have overnight contact with M but Mr and Mrs A had refused to agree to this. Alternative contact arrangements were made; however, after collecting both children on 3 September for contact, Mrs I flew with both of them to Dubai and then on to Nigeria. Mr and Mrs A contacted both social services and the police and were granted a residence order and an order requiring Mr and Mrs I to return M to England.  

    In late September 2012, Mr and Mrs I wrote to the court, expressing their opposition to Mr and Mrs A's application. Their letter stated that they had resumed care of M, that he was settled in Nigeria and that they could not attend any court hearings.  

    When the matter came first before Mrs Justice Baron, Mr and Mrs I's position was that Mr and Mrs A had known that M would be returning to Nigeria. Indeed, they said that Mr and Mrs A had seen a document, signed by Mr and Mrs I, that Mr and Mrs A were no longer M's guardian or next of kin. Mr and Mrs A denied having seen this document at any time before issuing the proceedings. Mrs Justice Baron was unconvinced that M's aunt and uncle had consented to his removal though. She found that M was habitually resident in England and that there were issues concerning his welfare that needed to be resolved here; she made M a ward of court and directed that Mr and Mrs I return M by 7 November 2012.  

    The matter came before Mr Justice Peter Jackson. Mr and Mrs I maintained that they had rescinded their original letter of authority and argued that, as sole holders of parental responsibility, they had been entitled to remove M from England with or without Mr and Mrs A's agreement. They submitted that their delegation of day to day decisions concerning M had come to an end on 1 August 2012 with the document they asserted they had written and shown to Mr and Mrs A. Mr and Mrs A contended that M had been habitually resident in England at the time of their applications; they continued to seeks order for M's residence and return.  

    Held: The court held that M had been habitually resident in England at the time the proceedings had been issued and that, accordingly, the court had had the jurisdiction to make the orders it had.  

    Jackson J set out that the relevant facts in the case were: 

    • M was a Nigerian citizen who had lived in England for five years between August 2007 and 3 September 2012.  
    • M's family life revolved around Mr and Mrs A, his primary carers, who had day to day authority delegated to them by Mr and Mrs I. M had lived in the same area, had an established network of friends and had not returned to Nigeria during his five years in England.  
    • Mr and Mrs A had been qualified to make an application for a residence order as of right, having looked after M for three years; however they had not made that application.  
    • Mr and Mrs I were the sole joint holders of parental responsibility for M but their involvement in his life over the past five years had been limited; their relationship with M was very much secondary to that of Mr and Mrs A's. 
    • Mr and Mrs A and M had a right to respect for their family life under Article 8 European Convention on Human Rights ("ECHR") as did Mr and Mrs I.  
    • M's removal by Mrs I had been covert in order to make sure that Mr and Mrs A would not be able to prevent it.  
    • Mr and Mrs A had taken immediate steps to challenge M's removal; they had made their applications within three days. 

    Observing that M's family situation had some unusual aspects which called for particular respect to be paid to M's individuality as opposed to his being treated as an adjunct to any of the adults involved, Jackson J commented that it would have come to a considerable surprise to M to have been removed from Mr and Mrs A's home without any preparation or goodbyes. However, Jackson J also noted that M's situation was comparable to that of many other children of his cultural background who were placed with family members for long periods of time. Nonetheless, after such a lengthy period of time, that consideration could not, he said, count for much in relation to the assessment of M's habitual residence.  

    Jackson J attached considerable weight to the length of time that M had lived a settled life in England and his ties to Mr and Mrs A. Although the united position of Mr and Mrs I also carried weight, and might well prevail in another situation, when considering the narrow issue of jurisdiction, Jackson J found that this was a case where the parents had no right to change their child's habitual residence simply by exercise of will. Mr and Mrs I had not been M's physical carers and his habitual residence did not follow theirs. Their intentions and action in removing M from England had not deprived M of his ties to this jurisdiction.  

    Comment 

    Of course, all this case did was to determine jurisdiction; whether and, if so, how the court should exercise its powers is another matter.  

    By coincidence, during the week that the hearing in Re I took place, Jackson J also heard the case of Re J [2012] EWHC 3364 (Fam), which also involved the court having to determine a child's habitual residence in circumstances involving an unusual family set-up and a covert removal. Commenting on hearing two similar cases in the same weeks, and emphasising that habitual residence is a question of fact, Jackson J said: 

    "The cases illustrate the similarities and the differences in the facts that determine the question of habitual residence."

Case note, published: 08/01/2013

Topics

See also


Published: 08/01/2013

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item