Family Law Hub

Re J (A Child: habitual residence) [2012] EWHC 3364 (Fam)

  • In brief: Here, the child's ("A")  maternal grandparents and mother ("M") challenged the jurisdictional basis upon which the father ("F") had obtained a parental responsibility order, a declaration of parentage and an order that the maternal grandparents return A to England.  

    A had been born in England in 2005; M, whose family were American, had returned to the USA when A was a year old. A had remained in England and had been cared for by her maternal grandmother, who had moved to England some years before; she obtained a residence order in respect of A in 2007. M had played little part in A's life. F had not been registered as A's father at birth but established paternity in 2006 thanks to a DNA test. He and A's paternal grandmother then played a significant role in A's life including regular overnight contact.  

    In June 2012, the maternal grandparents, having packed up their belongings and made arrangements to emigrate to the USA, took A with them to the USA without F's knowledge. A remained in the USA, eventually living with M, her husband and children but without her grandparents.  

    Within two weeks of A leaving for the USA, F had applied to the court. He was granted a parental responsibility order, a declaration of parentage order and an order for the maternal grandparents to return the child to England.  

    After reviewing the relevant authorities that deal with habitual residence and s.13 Children Act 1989, Mr Justice Peter Jackson concluded that determining a child's habitual residence was a question of fact. Such facts could be tangible (e.g. events) or intangible (e.g. relationships, intentions) or they might be legal rights and wrongs. Generally, the overall assessment did not though give automatic precedence to one kind of fact over another.  

    Insofar as s.13 Children Act 1989 was concerned, A's maternal grandmother held parental responsibility for A but that status had been circumscribed by s.13 Children Act 1989; the grandparents had not had the legal right to remove A permanently from the jurisdiction and the removal had not complied with s.13.  

    Jackson J gave weight to the unusual aspects of A's family situation which he said called for particular respect to be paid to her individuality as opposed to treating her as an adjunct to any of the adults involved in her life. He  found that A had been habitually resident in England all her life. The fact that she had been out of the jurisdiction for 13 days when F made his applications had not resulted in her losing that status. He confirmed that the court had indeed had jurisdiction to make the orders it had.

Case note, published: 08/01/2013

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Published: 08/01/2013

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