FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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L |
Applicant Mother |
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- and - |
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D |
Respondent Father |
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Natasha Miller (instructed by Dawson Cornwell LLP) for the Respondent
Hearing dates: 18 and 24 March 2025
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Crown Copyright ©
Mrs Justice Morgan:
i) Habitual Residence
ii) Article 13 (a) - Acquiescence
iii) Article 13 - Child's objections
iv) Article 12 (b) Grave risk of harm /Intolerability
However he modified his position at the outset of this hearing such that he no longer pursued his defence on the basis of Acquiescence. He also through Counsel's skeleton for this hearing informed the Court that in the event that Court were to direct a return of the child to Colombia, he would not himself return, and neither would he accompany Sophia so as to return her. Since neither in his written evidence, nor at the hearing at which this final hearing had been listed, had he indicated that this would be his stance, I permitted short oral evidence from him on this aspect alone.
Background to the Application
Mother's Case
Father's Case
Father's Oral Evidence
Cafcass Officer's Oral Evidence
The Relevant Date For Considering Retention
Habitual Residence
a) It is in breach of rights of custody attributed to a person, an institution or any other body either jointly or alone under the law of the State in which the child was habitually resident immediately before the removal or retention and
b) At the time of removal or retention those rights were actually exercised either jointly or alone or would have been so exercised but for the removal or retention [emphasis added]
(i) 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 (A v A, adopting the European test).
(ii) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. It must be emphasised that the factual inquiry must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual residence (A v A, In re L).
(iii) In common with the other rules of jurisdiction in Council Regulation (EC) No 2201/2003 ("Brussels IIA") its meaning 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": A v A , para 80(ii); In re B , para 42, applying Mercredi v Chaffe (Case C-497/10PPU) EU:C:2010:829; [2012] Fam 22 , para 46.
(iv) 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 (In re R).
(v) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (In re LC). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused. It is the child's habitual residence which is in question and, it follows the child's integration which is under consideration.
(vi) Parental intention is relevant to the assessment, but not determinative (In re L, In re R and in re B).
(vii) It will be highly unusual for a child to have no habitual residence. Usually a child loses a pre-existing habitual residence at the same time as gaining a new one (In re B).
(viii)
(ix) It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there (In re R and earlier in in re L and Mercredi).
(x) The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident (In re R) (emphasis added).
(xi) The requisite degree of integration can, in certain circumstances, develop quite quickly ( article 9 of Brussels IIA envisages within three months). It is possible to acquire a new habitual residence in a single day (A v A; In re B). In the latter case Lord Wilson JSC referred (para 45) to those "first roots" which represent the requisite degree of integration and which a child will "probably" put down "quite quickly" following a move.
(xii) Habitual residence was a question of fact focused upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It was the stability of the residence that was important, not whether it was of a permanent character. There was no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely (In re R).
(xiii) The structure of Brussels IIA, and particularly recital (12) to the Regulation, demonstrates that it is in a child's best interests to have an habitual residence and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual residence; As such, "if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former" ( In re B supra).