Re M and T (Proposed
Convention Adoption) Habitual Residence
[2015] EWFC B239 (16 July 2015) the court was concerned with children who had been in the care of their paternal aunt for 2 years. There were numerous legal irregularities relating to the placement in the first year and half of that placement. Keehan J decided that there had been no change in the children’s habitual residence during the period of time they had been living with their aunt and was satisfied that the children remained habitually resident in this jurisdiction. He also concluded that the children would not lose their habitual residence in this jurisdiction while the process for a Hague Convention Adoption was taken to the point of an Article 17 agreement. Given the similarities between that case and this (albeit I must note that the children in this case were subject to a placement order), it is instructive to set out what Keehan J stated below:-
“31.Ms. Cabeza on behalf of E submits that the facts of the cases in Re CM and Re S and T are very different to the facts of this case. I agree. The principle which I derive from those cases, and from the case of Re R, is that it is not sufficient simply to have regard to whether the children have achieved some degree of integration in a social and family environment. The stability of that placement is another factor to be considered. Moreover the court must take account of the duration, regularity, conditions and reasons for the stay in the territory of a member state.
32.I readily accept that the issue of habitual residence is a matter of fact. Accordingly, the mere fact that a child is a ward of this Court or is subject to orders requiring his return to this jurisdiction if the court so orders when, for example, granting permission pursuant to Section 28 of the 2002 Act to remove a child from the jurisdiction, that cannot of itself prevent the child from acquiring habitual residence in another country in which he stays with the leave of the Court. Thus a court order is not a trump card which precludes a child losing habitual residence in this country and/or acquiring habitual residence in another country.
33.In my judgment there are clear public policy considerations in respect of a child, whom the Court has given permission to stay with a family member or other person in another country for the purposes of an assessment, but over whom the court intends to retain jurisdiction, against him losing habitual residence by the mere effluxion of time when present in that other country. These considerations cannot prevent that child in appropriate circumstances as a matter of fact acquiring habitual residence in the other country. They are however factors to be considered when analysing the factual matrix.
34.I accept that since their arrival in the United States of America in August 2013 the children have undoubtedly achieved a degree of integration in the social and family environment of E. No doubt to a very considerable degree. There are, however, other factors which I must consider and in particular the stability of that placement, the reasons for their stay in the United States of America and the conditions of the same. At paragraph 45 he concluded: 45.
In all of the circumstances I am not satisfied that the children's stay or placement in the care of E has achieved or will during the currency of these proceedings achieve a significant degree of stability that results in the children, as a matter of fact, having acquired or acquiring habitual residence in the United States of America. Furthermore, their placement in her care is for the purposes of securing an adoption order in her favour which has not yet been approved or granted by this Court. 46.
Accordingly I am entirely satisfied that the children are and remain habitually resident in this jurisdiction. The position of the parties11. Dr. Morgan, for the local authority submitted that T’s habitual residence is now in the United States. With reference to the case law, including Mercredi v Chaffe (
Case C497/10PPU [2012] Fam 22,
A v A,
In Re R,
Re S and Re T (Intercountry Adoption: USA
[2015] EWHC 1753 (Fam) , Re M (Children)(Habitual Residence: 1980 Hague Child Abduction Convention
[2020] EWCA Civ 1105 and Re M and T (Proposed