Newcastle upon Tyne NE1 8QF
B e f o r e :
(BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR)
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CITY OF EDINBURGH COUNCIL
Mr Simon Wilkinson (instructed by David Gray Solicitors) on behalf of the Applicant
Ms Peggy Etibet (instructed by Gateshead Council Legal and Democratic Services) on behalf of the First Respondent
Ms Claire van Overdijk (instructed by Irwin Mitchell LLP) on behalf of the Second Respondent
Other Parties Present and their status
Judgment date: 3 July 2020
(start and end times cannot be noted due to audio format)
Reporting Restrictions Applied: No
Crown Copyright ©
Her Honour Judge Moir:
"A considerable amount of planning and consideration went into IM's move to the placement in Gateshead. I reviewed the placement four to six weeks after the move in accordance with the Council's practices. I'm of the view that the placement is working well and will be suitable for IM in the longer term. In the circumstances it seems inevitable that habitual residence will move to England and Wales at some point in the future if it has not done so already."
England has been established. If habitual residence in England is established the powers of the court thereafter are much wider than otherwise. All the advocates within their submissions to me and the skeleton arguments have referred to Re DB Re E  EWCOP 30, a decision of Baker J as he was then, and also An English Local Authority v SW  EWCOP 43 which is a decision of Moylan J as he was then. It is agreed that the principles in the Court of Protection and in the Family Court are broadly similar. What has been distilled from the authorities in the Court of Protection and from A v A  UKSC 60 in the Family Court are the principles and key questions which the court must address. Baroness Hale in A v A and summarised by Barker J in Re DB summarised the key question thus:
"Has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) … become habitual?"
"With one to one support IM goes out every day into the local community."
"I would suggest that the 'degree of integration', as with centre of interests, is an overarching summary or question rather than the sole, or even necessarily the primary factor in the determination of habitual residence. Otherwise, it would become a legal construct in place of the essential issue which is, of course, that of habitual residence. This is not to say that the degree of integration and a person's state of mind are not relevant, they are clearly factors to which appropriate weight must be given when the court is undertaking a broad assessment of all circumstances of the case. The broad assessment which is required properly to determine whether the quality of residence is such that it has become habitual, in that it has the necessary degree of stability in order to distinguish it from [the] mere presence or temporary or intermittent residence. This means a sufficient, or some degree of integration, not, I suggest, as a limited factual assessment, but as a question to be answered by reference to the factors suitably applied, referred to by the CJEU and the Supreme Court."
a) "… habitual residence is a question of fact and not a legal concept such as domicile."
b) in family cases the CJEU has used the place which reflects some degree of integration by the child in a social and family environment as a test for habitual residence.
c) "… factual … nature of [the inquiries] should not be glossed with legal concepts which [will] produce a different result from that which the factual inquiry would produce."
d) habitual residence must as a general rule have a certain duration which reflects an adequate degree of permanence and stability though there is no minimum duration.
"habitual residence is a question of fact"
He noted that:
"The broad assessment which is required properly to determine whether the quality of residence is such that it has become habitual in that it has the necessary degree of stability in order to distinguish it from mere presence or temporary … intermittent residence."
"With one to one support he [i.e. IM] goes out every day into the local community with members of the care staff. He does interact with staff and residents."
"never stayed anywhere apart from Scotland"
"I had just made friends and was starting to socialise in Scotland and I
was getting it all together before I was moved here."