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The law
The law
In considering the question of jurisdiction it is convenient to start with the Family Law Act 1986. Section 1 sets out the orders to which Part 1 of the Act applies. These include:
By virtue of section 1(1)(a) an order made pursuant to section 8 of the Children Act 1989, other than an order varying or discharging such an order;
By virtue of section 1(1)(d) an order made under the court’s inherent jurisdiction so far as it gives care of a child to any person or provides for contact with, or the education of a child, but excluding an order varying or revoking such an order.
Section 2(1) of the 1986 Act sets out the court shall not make a section 1(1)(a) order unless one of two situations applies:
It has jurisdiction under the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children; or
Section 2(3) of the 1986 Act sets out that the court shall not make a section 1(1)(d) order unless one of two situations applies. So far as is material for present purposes these are identical to those set out above.
The application made by the mother on 12 October 2024 in From C100 was expressed as being for a specific issue order requesting ‘Court amendment for either child to return to the UK if choose to do so…’. In form, arguably at least, this was an application to vary the previous order made in June and therefore fell outside the ambit of orders within section 1(1)(a) of the 1986 Act. What the mother was seeking in substance, however, was an order providing for G to return to England and Wales. Such an order, it seems to me, would fall squarely within section 1(1)(a), meaning that the jurisdictional requirements in section 2(1) of the Act needed to be satisfied.
The court’s jurisdiction to make the order for which the mother applied essentially depends upon whether G was habitually resident in England and Wales on 12 October 2024, the date of the mother’s application: see Art 5 of the 1996 Hague Convention and section 2(1)(b)(ii) of the Family Law Act 1986.
In order to determine whether the court has jurisdiction under the 1996 Hague Convention it is necessary first to consider habitual residence on the date of issue of the proceedings. The court may, however, lose jurisdiction if, by the time of the hearing, habitual residence has transferred to another State. In that event, and assuming that the 1996 Hague Convention does not apply, section 2(1)(b)(ii) of the Family Law Act 1986 (read in conjunction with sections 3 and 7 of the Act) confers a residual jurisdiction on the court based upon the child’s habitual residence on the date of the application: see Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA 659.
The USA is not a party to the 1996 Hague Convention. Therefore if G ceased to be habitually resident at any stage following the move, this would be a case to which that Convention ‘does not apply’ for the purposes of the 1986 Act.
The concept of habitual residence has been considered by the Supreme Court on a number of occasions since 2011. In Re B (A Minor: Habitual Residence) [2016] EWHC 2174. Hayden J summarised the principles, a summary later adopted with one modification by the Court of Appeal in Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105. I have regard to all of the principles in that summary (as amended). In particular:
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. It is not necessary for a child to be fully integrated before becoming habitually resident. The requisite degree of integration can, in certain circumstances, develop quite quickly. It is possible to acquire a new habitual residence in a single day.
The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. The factual enquiry must be centred throughout on the circumstances of the child's life that are most likely to illuminate his habitual residence.
The meaning of habitual residence is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity'. Proximity in this context means 'the practical connection between the child and the country concerned'.
It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent.
A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her. The younger the child the more likely this proposition is to be true.
Parental intention is relevant to the assessment of habitual residence, but not determinative.
It will be highly unusual for a child to have no habitual residence. Usually a child will lose a pre-existing habitual residence at the same time as gaining a new one.
It is the stability of a child's residence as opposed to its permanence which is relevant.
In Re B (A Child) (Habitual Residence) [2016] UKSC 4, Lord Wilson drew an analogy between the process by which habitual residence transfers from one jurisdiction to another and the operation of a see-saw. He did so to illustrate the point that a change of habitual residence is likely to take place seamlessly such that an existing habitual residence will be lost at the same time a new one is gained. As to the length of time needed for a transfer to take place, Lord Wilson, whilst declining to provide formal guidance on the issue, set out the following 'expectations' at para 46:
the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;
the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and
were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.
These expectations were highlighted by Moylan LJ in Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA 659. By contrast, however, in Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105 Moylan LJ held that Lord Wilson's see-saw analogy needs to be approached with some caution. He stated at paragraphs 61 and 62 that:
"while Lord Wilson's see-saw analogy can assist the court when deciding the question of habitual residence, it does not replace the core guidance given in A v A and other cases to the approach which should be taken to the determination of the habitual residence. This requires an analysis of the child's situation in and connections with the state or states in which he or she is said to be habitually resident for the purpose of determining in which state he or she has the requisite degree of integration to mean that their residence there is habitual.
Further, the analogy needs to be used with caution because if it is applied as though it is the test for habitual residence it can, as in my view is demonstrated by the present case, result in the court's focus being disproportionately on the extent of a child's continuing roots or connections with and/or on an historical analysis of their previous roots or connections rather than focusing, as is required, on the child's current situation (at the relevant date). This is not to say continuing or historical connections are not relevant but they are part of, not the primary focus of, the court's analysis when deciding the critical question which is where is the child habitually resident and not, simply, when was a previous habitual residence lost."
A crucial element of the 'core guidance' to which Moylan LJ referred is that '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'. In Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA 659 at para 41 Moylan LJ added this important qualification:
“It is clear, however, not only from Proceedings brought by A itself but also from many other authorities, that this is a shorthand summary of the approach which the court should take and that "some degree of integration" is not itself determinative of the question of habitual residence. Habitual residence is an issue of fact which requires consideration of all relevant factors. There is an open-ended, not a closed, list of potentially relevant factors.” [my emphasis]
After citing from Proceedings brought by A , Re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] AC 1038 and Re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35, Moylan LJ continued at paras 45 and 46:
“I refer to the above, not to put forward any gloss on the meaning of habitual residence… but simply to demonstrate that "some degree of integration" is not a substitute for the required global analysis.
I would add that, self-evidently, a test of whether a child had "some degree of integration" in any one country cannot be sufficient when a child might be said to have some degree of integration in more than one State. This is why, as referred to in my judgment in Re G-E (Children) (Hague Convention 1980: Repudiatory Retention and Habitual Residence) [2019] 2 FLR 17 … at [59], the "comparative nature of the exercise" requires the court to consider the factors which connect the child to each State where they are alleged to be habitually resident.”
In the case of an adolescent child, the ‘potentially relevant factors’ to which Moylan LJ referred include the child’s state of mind following the move. This is a proposition which derives from the Supreme Court’s decision in Re LC. In that case, Lord Wilson (with whom the majority of the Court agreed) said the following at para 37:
“Where a child of any age goes lawfully to reside with a parent in a state in which that parent is habitually resident, it will no doubt be highly unusual for that child not to acquire habitual residence there too. The same may be said of a situation in which, perhaps after living with a member of the wider family, a child goes to reside there with both parents. But in highly unusual cases there must be room for a different conclusion; and the requirement of some integration creates room for it perfectly. No different conclusion will be reached in the case of a young child. But, where the child is older, in particular one who is an adolescent or who should be treated as an adolescent because she (or he) has the maturity of an adolescent, and perhaps also where (to take the facts of this case) the older child’s residence with the parent proves to be of short duration, the inquiry into her integration in the new environment must encompass more than the surface features of her life there. I see no justification for a refusal even to consider evidence of her own state of mind during the period of her residence there. Her mind may—possibly—have been in a state of rebellious turmoil about the home chosen for her which would be inconsistent with any significant degree of integration on her part. In the debate in this court about the occasional relevance of this dimension, references have been made to the ‘wishes’ ‘views’ ‘intentions’ and ‘decisions’ of the child. But, in my opinion, none of those words is apt. What can occasionally be relevant to whether an older child shares her parent’s habitual residence is her state of mind during the period of her residence with that parent. In Shah’s case, cited above, in which he propounded the test recently abandoned, Lord Scarman observed ([1983] 1 All ER 226 at 235–236, [1983] 2 AC 309 at 344) that proof of ordinary (or habitual) residence was ‘ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind’. Nowadays some might not accept that evidence of state of mind was not susceptible of objective proof; but, insofar as Lord Scarman’s observation might be taken to exclude the relevance of a person’s state of mind to her habitual residence, I suggest that this court should consign it to legal history, along with the test which he propounded.” [my emphasis]