[2024] UKUT 128 (AAC)

On the basis that the correct test is that of ordinary or habitual residence, the speeches of Lady Hale DPSC and Lord Hughes JSC in A v A are of signal relevance in the present context, particularly that of the latter at paragraph [80] and the principles set out at (iv)-(vii), with particular reference to the decision in the case of Mercredi v Chaffe, although it is useful to set out the relevant extracts from both judgments.

Lady Hale DPSC said that

“54.

Drawing the threads together, therefore:

i)

All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

ii)

It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

iii)

The test adopted by the European Court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends upon numerous factors, includingthe reasons for the family’s stay in the country in question.

iv)

It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

v)

In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one
of the relevant factors. The test derived from R v Barnet London BoroughCouncil, ex p Shah should be abandoned when deciding the habitual residence of a child.

vi)

The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

vii)

The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

viii)

As the Advocate General pointed out in para 45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.”

For his part Lord Hughes JSC stated that

“80.

In accordance with its usual practice when dealing with the same issue in successive cases, the court used substantially the same language in each. The following principal propositions can be extracted from the decisions.

i)

The meaning of ‘habitual residence’ is autonomous, that is to say not governed by differing national laws on the topic: A’s case at para 34.

ii)

One of the great values of habitual residence as a base for jurisdiction is proximity: A’s case at para 35; by this the court clearly meant the practical connection between the child and the country concerned.

iii)

The question is one of fact. At para 37 in A’s case, repeated at para 47 in Mercredi v Chaffe the court said:

“The "habitual residence" of a child, within the meaning of article 8(1) of the Regulation, must be established on the basis of all the circumstances specific to each individual case.”

iv)

Simple physical presence is not by itself sufficient. At para 38 in A’s case the court said:

“In addition to the physical presence of the child in a member state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.”

Those words were substantially repeated in Mercredi v Chaffe at para 49.

v)

Those other factors will mainly be, in the case of a child, those which show ‘some degree of integration in a social and family environment’: see paras 38 and 44 in A’s case and identical language at para 47 in Mercredi v
Chaffe. Thus, for example, on the facts of A’s case where the issue was whether the stay was enduring or intermittent, they are likely to include, as the court said at paras 39 and 44:

“the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.”

This formulation was preferred by the court to that suggested by the Advocate General in A’s case, namely the ‘actual centre of interests’ (see at para 38).

vi)

Similarly, in the case of a child, the intention of the parent or parents will normally be a relevant factor. At para 40 in A’s case, repeated at para 50 in Mercredi v Chaffe, the court said:

“the intention of the person with parental responsibility to settlepermanently with the child in another member state, manifested by certain tangible steps such as the purchase or rental of accommodation in the host member state, may constitute an indicator of the transfer of the habitual residence”

On the facts of Mercredi v Chaffe where the child was a babe in arms and the issue was less whether the presence was intermittent than whether there
was sufficient endurance to amount to habitual residence, this factor was of greater significance.

vii)

The duration of the stay is a relevant factor but is not determinative.In Mercredi v Chaffe at para 51 the court said:

“In that regard, it must be stated that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate
degree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferredto the host state, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lastingcharacter. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case.”

The use of the word ‘permanence’ (which did not appear in A’s case) must, for the reasons explained by Lady Hale at para 51, be read together with the
careful analysis of Sir Peter Singer in DL v EL [2013] EWHC 49 (Fam), [2013] 2 FLR 163, endorsed by the Court of Appeal at [2013] EWCA Civ 865.

As a general rule, a child will share the habitual residence of his parents with whom he lives and there is no reason why that general rule should not apply in the present case. In particular, I note to what Lord Hughes said at (vii) in relation to paragraph [51] of Mercredi v Chaffe, namely that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence, although the law does not lay down any minimum duration. However, before habitual residence can be transferredto the host state, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lastingcharacter. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case.

In this case it is clear from what T’s father has said in his witness statement that the family lived in Fareham and that T went to school in Fareham until the family moved to Dubai consequent upon his father’s deployment by the Royal Navy, which was anticipated to be for a term of 3 years. It is also clear from paragraph [18] of that statement that the family did not intend to settle permanently in Dubai, that they kept their house in Fareham, albeit that it was rented out (so Judge Ozen’s statement to the contrary was materially incorrect on that point) and that they were offered a return flight to the UK each year to keep in touch with their family during the deployment overseas.

Although T and his family were physically present in Dubai, the other relevant factors which require to be taken into account to determine his ordinary or habitual residence demonstrate on the contrary that that presence was only temporary or intermittent and of a strictly limited and circumscribed duration and that T’s residence with his family in Dubai did not mean that he was not ordinarily or habitually resident in Hampshire. The duration, conditions and reasons for the stay in Dubai and for the family's move there on service deployment all demonstrate that he remained ordinarily or habitually resident in Hampshire, and thus with the Council’s area. The Royal Navy provided housing and education for the family, his father remained a UK taxpayer and T himself continued to be paid UK benefits and disability living allowance.

I therefore agree with the analysis set out in Mr Gillie’s skeleton argument which is set out in paragraphs 91 to 92 of this judgment.

The consequence therefore is that, although under s.45(1) of the 2014 Act, there is a discretionary power to cease to maintain an EHCP, in the circumstances of this case there was no lawful exercise of that discretion because T was still in the local authority’s area because he was still ordinarily resident in that area (and in any event the decision to cease to maintain was unlawful because it was carried out in manifest and egregious breach of the mandatory requirements of regulation 31 of the 2014 Regulations).