ON APPEAL FROM THE HIGH COURT OF
JUSTICE FAMILY DIVISION
MRS JUSTICE PARKER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE PATTEN
| ZA and PA
Alistair Perkins (instructed by Dawson Cornwell) for the Respondent
Hearing date : 6th July 2012
Crown Copyright ©
Lord Justice Thorpe :
i) That the judge was wrong in law to hold that H was habitually resident in this jurisdiction. He was conceived and born elsewhere and the first two years of his life had been spent entirely in Pakistan.
ii) The proceedings in Pakistan were first in time. Under principles of comity, alternatively under the lis alibi pendens rule, London should not have claimed and exercised jurisdiction.
iii) The judge disregarded the rule expressed in paragraph five of the Pakistan Protocol.
iv) The judge failed to recognise that the question of jurisdiction was governed by Regulation Brussels II revised. She should have applied not the English concept of habitual residence but the European concept as established in the judgments of the Court of Justice of the EU: Re A (Area of Freedom, Security and Justice) (C-523/07) (2009) 2 FLR 1 and Mercredi v Chaffe (C-497/10) (2011) 1 FLR 1293.
"The mother's account has been given consistently and it is internally consistent. She was retained against her will, the children were retained against her will and when her son was born in Pakistan this was against her wishes. She wanted to be back in England. Her case is supported by the Pakistan Court documents of 8th December and is supported by the email from the refuge which summarises the account that she has given me.
I reject entirely the father's account that the mother abandoned the children. Her actions upon arriving in this country are wholly inconsistent with that. She applied to the court very soon after she arrived. Her reaction and demeanour when asked about why she had left the children was wholly inconsistent with abandonment. She explained to me that she had had to get out while she could and then make an application in respect of the children in this jurisdiction. Her case makes absolute sense."
"As the court explained, moreover, in para 38 of Re A, in order to determine where a child is habitually resident, in addition to the physical presence of a child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent."
Lord Justice Rimer:
Lord Justice Patten:
(1) habitual residence is primarily a question of fact to be determined by reference to all the relevant circumstances. It is not to be treated as a term of art nor is it a legal concept in the sense of a set of pre-determined rules designed to produce a particular legal result in given circumstances: see J (A Minor) (Abduction: Custody Rights)  2 AC 562;
(2) consistently with this, a child does not automatically take the habitual residence of its parents or custodial parent and there is no mandatory coincidence between them: see Re M (Abduction: Habitual Residence)  1 FLR 887 at p. 891; Al Habtoor v Fotheringham  1 FLR 951. For the same reason, it is also possible for a person (child or adult) to have no place of habitual residence at any given point in time. Although justifiable concern has been expressed (particularly in the context of international abduction) about a child having no habitual residence in a case where jurisdiction to make protective orders is in general based upon that condition, the law has yet to reach the stage where every child is deemed to be habitually resident somewhere (see Nessa v Chief Adjudication Officer [1999[ 1 WLR 1937 at p. 1942) and the contrary has not been argued on this appeal;
(3) the acquisition of habitual residence in any country requires the adult or child in question to be physically present there. In Re M (supra) (where the wardship and return order had been made in respect of a child who remained in India) Sir John Balcombe (at p. 895) said:"Before a person, whether a child or an adult, can be said to be habitually resident in a country, it is clear that he must be resident in that country. Of course, residence does not necessarily require physical presence at all times. Temporary absence on holiday, or for educational purposes (as in Re A) will not bring to an end habitual residence. But here the Judge found as a fact, and on ample evidence, that K became habitually resident in India. He has never to this day come back to England. As a matter of fact, he has not been resident in England since he went to India in February 1994. Bracewell, J held that the mother's change of mind both brought to an end K's habitual residence in India and gave him an habitual resident in England.I have the gravest doubts whether the first proposition is correct. Clearly, the mother's change of mind could not alter the fact that he was, and is, physically resident in India. Whether her change of mind could alone alter the 'habitual' nature of that residence I very much doubt, but in any event it is not necessary finally to decide that point on this appeal, since the one thing about which I am quite clear is that the child's residence in India could not become a residence in England and Wales without his ever having returned to this country. As I said before, the idea that a child's residence can be changed without his ever leaving the country where he is resident is to abandon the factual basis of "habitual residence" and to clothe it with some metaphysical or abstract basis more appropriate to a legal concept such as domicil."
In his judgment Millett LJ said that:"Three principles must be borne in mind:–(1) The question whether a person is or is not habitually resident in a particular country is a question of fact; Re J (a Minor) (Abduction: Custody Rights)  2 AC 562, 578, sub nom C v S (A Minor) (Abduction)  2 FLR 442, 454 per Lord Brandon. The concept of habitual residence is not an artificial legal construct.(2) While it is not necessary for a person to remain continuously present in a particular country in order for him to retain residence there, it is not possible for a person to acquire residence in one country while remaining throughout physically present in another.(3) Where both parents have joint parental responsibility, neither of them can unilaterally change the habitual residence of the child by removing the child wrongfully and in breach of the other party's rights; Re J at 572 and 449 respectively per Lord Donaldson, MR."(4) In Al Habtoor (at p. 966) Thorpe LJ affirmed the authority of these passages and the point is not open for argument in this court.
The other children
" Article 8(1) lays down the principle that the jurisdiction of the courts of the member states in matters of parental responsibility is established according to the place of the child's habitual residence at the time the court is seised, but does not define the content of that concept.
 Under Art 13(1) of the Regulation, where a child's habitual residence cannot be established the courts of the member state where the child is present are to have jurisdiction.
 Thus, the physical presence alone of the child in a member state, as a jurisdictional rule alternative to that laid down in Art 8 of the Regulation, is not sufficient to establish the habitual residence of the child.
 According to settled case law, it follows from the need for uniform application of Community law and from the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the member states for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Community, having regard to the context of the provision and the objective pursued by the legislation in question (see, in particular, Ekro BV Vee- En Vlees Handel v Produktschap Voor Vee en Vlees (C-327/82)  ECR 107, para 11 and Nordania Finans and BG Factoring (C-98/07)  ECR I-1281, para 17).
 Since Art 8(1) of the Regulation does not make any express reference to the law of the member states for the purpose of determining the meaning and scope of the concept of "habitual residence", that determination must be made in the light of the context of the provisions and the objective of the Regulation, in particular that which is apparent from recital 12 in the preamble, according to which the grounds of jurisdiction which it establishes are shaped in the light of the best interests of the child, in particular on the criterion of proximity.
 The case law of the Court of Justice relating to the concept of habitual residence in other areas of European Union law (see, in particular, Magdalena Fernández v Commission (C-452/93P)  ECR I-4295, para 22; Adanez-Vega v Bundesanstalt für Arbeit (C-372/02)  ECR I-10761, para 37 and Kozlowski (C-66/08)  ECR I-0000) cannot be directly transposed in the context of the assessment of the habitual residence of children for the purposes of Art 8(1) of the Regulation.
 The "habitual residence" of a child, within the meaning of Art 8(1) of the Regulation, must be established on the basis of all the circumstances specific to each individual case.
 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.
 In particular, 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."
" In that regard, it must first be observed that the Regulation contains no definition of the concept of 'habitual residence'. It merely follows from the use of the adjective 'habitual' that the residence must have a certain permanence or regularity.
 According to settled case law, it follows from the need for a uniform application of European Union law and the principle of equality that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question (see, inter alia, Ekro BV Vee- en Vleeshandel v Produktschap voor Vee en Vlees (Case 327/82)  ECR 107, para 11; Nordania Finans and BG Factoring (C-98/07)  ECR I-1281, para 17; and Re A (Area of Freedom, Security and Justice) (Case C-523/07)  2 FLR 1, para 34).
 Since the Articles of the Regulation which refer to 'habitual residence' make no express reference to the law of the Member States for the purpose of determining the meaning and scope of that concept, its meaning and scope must be determined in the light of the context of the Regulation's provisions and the objective pursued by it, in particular the objective stated in recital 12 in the preamble to the Regulation, that the grounds of jurisdiction established in the Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity.
 To ensure that the best interests of the child are given the utmost consideration, the court has previously ruled that the concept of "habitual residence" under Art 8(1) of the Regulation corresponds to the place which reflects some degree of integration by the child in a social and family environment. That place must be established by the national court, taking account of all the circumstances of fact specific to each individual case (see Re A, para 44).
 Among the tests which should be applied by the national court to establish the place where a child is habitually resident, particular mention should be made of the conditions and reasons for the child's stay on the territory of a Member State, and the child's nationality (see Re A, para 44).
 As the court explained, moreover, in para 38 of Re A, in order to determine where a child is habitually resident, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent.
 In that context, the court has stated that the intention of the person with parental responsibility to settle permanently 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 (see Re A, para 40).
 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 transferred to 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 lasting character. 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 the main proceedings, the child's age, it may be added, is liable to be of particular importance.
 The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant.
 As a general rule, the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of.
 That is even more true where the child concerned is an infant. An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where, as in the main proceedings, the infant is in fact looked after by her mother, it is necessary to assess the mother's integration in her social and family environment. In that regard, the tests stated in the court's case law, such as the reasons for the move by the child's mother to another Member State, the languages known to the mother or again her geographic and family origins may become relevant.
 It follows from all of the foregoing that the answer to the first question is that the concept of "habitual residence", for the purposes of Arts 8 and 10 of the Regulation, must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State—other than that of her habitual residence—to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that state and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case.
 If the application of the abovementioned tests were, in the case in the main proceedings, to lead to the conclusion that the child's habitual residence cannot be established, which court has jurisdiction would have to be determined on the basis of the criterion of the child's presence, under Art 13 of the Regulation."
" In my judgment for present purposes that passage needs to be read as a whole. It identifies the submission which was rejected by the Court of Appeal because they concluded that the submission approached habitual residence as a legal concept rather than as an issue of fact.
 In my view the judgment of Millett LJ also has to be read in the light of the whole of that passage and the facts of the case.
 At the heart of the reasoning of Sir John Balcombe and Millett LJ are the propositions that habitual residence (i) is, or is primarily, a question of fact, and (ii) is not an artificial legal concept although Sir John Balcombe recognises that legal concepts are involved in determining that issue of fact (see for example his approval at 892C of the decision of Wall J in Re S (Minors) (Abduction: Wrongful Retention)  Fam 70,  1 FLR 82 that one of two parents cannot unilaterally change a child's habitual residence although he, or she, removes the child from his home).
 I add that in his comments on the passage in the judgment of Hoffmann LJ in Re M (Minors) (Residence Order: Jurisdiction)  1 FLR 495 which I have referred to above Sir John Balcombe points out that in that case the child was physically in England with the mother (see 892B) and thus that that passage is in line with the conclusion reached in Re M (Abduction: Habitual Residence)  1 FLR 887.
 Both judges also recognise the fact that a person can be resident in a country whilst temporarily away from it. In my judgment this is clearly in accord with a factual approach to what constitutes habitual residence in the sense set out by Sir John Balcombe in the passage I have cited at 890 of his judgment in Re M (Abduction: Habitual Residence)  1 FLR 887.
 In other words as a matter of fact a person can have his settled abode, or home as part of the regular order of his life, in one country when he or she is temporarily living in or visiting another country.
 Given that approach of Sir John Balcombe and Millett LJ and the facts of Re M (Abduction: Habitual Residence)  1 FLR 887 and Al Habtoor v Fotheringham  EWCA Civ 186,  1 FLR 951 the question arises whether it is right to extract the passages from their judgments that
'Before a person whether a child or an adult, can be said to be habitually resident in a country it is clear that he must be resident in that country', and 'it is not possible to acquire residence in one country whilst remaining physically present in another'
and say that they set down either:
(a) a rule or test in law; or
(b) a legal concept
that determines that a baby born abroad to a married couple who are habitually resident in England is not also habitually resident here until he or she is physically present in England.
 In my judgment they do not do so because to give them this effect would run counter to the proposition at the heart of the judgments of Sir John Balcombe and Millett LJ that habitual residence is, or is primarily, an issue of fact and is not an artificial concept.
 It follows that in my judgment:
(a) Re M (Abduction: Habitual Residence)  1 FLR 887 and Al Habtoor v Fotheringham  EWCA Civ 186,  1 FLR 951 do not found the proposition that a new born baby cannot have an habitual residence in England until he or she is (or has been) physically present in England; and
(b) generally a baby of a married couple (who are habitually resident in England at the time of the birth of the child) will also at birth generally be habitually resident in England notwithstanding that he (or she) is born abroad. I say generally because the issue is one of fact to be determined having regard to all the circumstances of the case and it is therefore possible that the intentions of the parents at the date of birth (eg that the child should live with grandparents abroad and that was why the mother went abroad to have the baby) could found a different result."