B e f o r e :
Sitting at the Royal Courts of Justice
| Derbyshire County Council
A (by her Children's Guardian)
The father appeared in person
Teertha Gupta QC (instructed by Bhatia Best Solicitors) for the Mother
Charles Prest (instructed by A & N Care Solicitors) for the Guardian
Hearing dates: 28 - 30 July 2014
Judgment date: 30 July 2014
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Mr Justice Peter Jackson:
(1) Was Amanda habitually resident in England and Wales when the proceedings began?
(2) If not, whether she habitually resident in any other country?
The law: Brussels II Revised
1 The courts of a Member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.
Jurisdiction based on the child's presence
1 Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction.
2 Paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their country.
Seising of a Court
1 A court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; or
Provisional, including protective, measures
1 In urgent cases, the provisions of this regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.
2 The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.
The law: habitual residence
"… The operative part of the judgment [in Mercredi] put it this way at pp 34-35:
"1 The concept of 'habitual residence'… 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. … 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."
"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, including the 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 Borough Council, 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 AG45 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."
Summary of conclusions
(1) She was habitually resident in Zimbabwe from her birth on 14 August 2007 until her third birthday on 14 August 2010.
(2) On her departure from Zimbabwe on 14 August 2010, she ceased to be habitually resident in Zimbabwe.
(3) She obviously did not become habitually resident in any of the many countries she has travelled through since 14 August 2010, namely South Africa (twice), Germany, the Netherlands (twice), Colombia (twice), Mexico, Belize (twice), Panama, Ecuador, Peru, Chile or Argentina.
(4) She did not become habitually resident in the United States following her arrival there on 12 September 2010.
(5) Even if she did become habitually resident in the United States in or after September 2010, she lost that habitual residence when she moved out of her grandmother's home in April 2012.
(6) Between 29 April 2012, when she left the United States on the first of five trips abroad, and her departure for England on 8 November 2012, Amanda spent only six weeks in the United States. During this period she had no habitual residence.
(7) If, contrary to my prior finding, Amanda was habitually resident in the United States after April 2012, she lost her habitual residence there upon her departure on 8 November 2012.
(8) Amanda's 37 days in England between 14 November and 21 December 2012 did not amount to the establishment of habitual residence.