UKSC 60
On appeal from:  EWCA Civ 1369 &  EWCA Civ 232
In the matter of A (Children)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
9 September 2013
Heard on 22 and 23 July 2013
James Turner QC
(Instructed by Dawson Cornwell)
Henry Setright QC
Manjit Gill QC
(Instructed by Thompson & Co)
|Intervener (Reunite International)
Richard Harrison QC
(Instructed by Bindmans LLP)
|Intervener (Children and Families Across Borders)
Alex Verdan QC
(Instructed by Farrer & Co LLP)
|Intervener (The Centre for Family Law and Practice)
Baroness Scotland QC
(Instructed by Hodge Jones & Allen)
LADY HALE (with whom Lord Wilson, Lord Reed and Lord Toulson agree)
The scope of the Act and the Regulation
"(a) a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order; . . .
(d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children –
(i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but
(ii) excluding an order varying or revoking such an order;"
"2.7 the term 'parental responsibility' shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access; . . .
2.9 the term "rights of custody" shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child's place of residence."
Jurisdiction under the 1986 Act
"(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless – (a) it has jurisdiction under the Council Regulation, or (b) the Council Regulation does not apply but ... (ii) the condition in section 3 of this Act is satisfied. . . .
(3) A court in England and Wales shall not make a section 1(1)(d) order unless – (a) it has jurisdiction under the Council Regulation, or (b) the Council Regulation does not apply, but (i) the condition in section 3 of this Act is satisfied, or (ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection."
"(1) The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned – (a) is habitually resident in England and Wales, or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom, . . ."
The omission of a reference to section 2(3)(b)(i) from section 3(1) appears to be an oversight which does not alter the sense of the provisions.
The jurisdictional scheme in the Regulation
"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.
2. Para 1 shall be subject to the provisions of Articles 9, 10 and 12."
"Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State."
Was this a Part I order?
Was this an order relating to parental responsibility within the scope of the Regulation?
Does the Regulation apply where there is a rival jurisdiction in a non-Member State?
Is there jurisdiction under article 8 of the Regulation?
"66. . . . We shall not dwell at this point upon the notion of habitual residence, a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile."
To the same effect are the first two of the four well-known propositions of Lord Brandon in the leading English case on habitual residence under the Child Abduction Convention, Re J (A Minor) (Abduction: Custody Rights)  2 AC 562, 578:
"The first point is that the expression 'habitually resident', as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case."
"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration."
(See, for example, Re M (Abduction: Habitual Residence)  1 FLR 887; Al-Habtoor v Fotheringham  1 FLR 951; Re R (Abduction: Habitual Residence)  1 FLR 216; Re P-J (Children) (Abduction: Consent)  1 WLR 1237; Re H-K (Habitual Residence)  1 FLR 436).
"The fourth point is that, where a young child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers."
"The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B."
I share Lord Hughes' view that the third and fourth points made by Lord Brandon are best seen as helpful generalisations of fact, which will usually but not invariably be true, rather than as propositions of law. There has been a tendency to construe this fourth statement as if it were a statute, and debate the meaning of "appreciable time". I would not accept that it is impossible to become habitually resident in a single day. It will all depend upon the circumstances. But I would accept that one may cease to be habitually resident in one country without having yet become habitually resident in another.
"38. 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." (Emphasis supplied)
The operative part of the judgment put it this way:
"2. The concept of 'habitual residence' under article 8(1) . . . must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, 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. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case."
"49 . . . 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." (Emphasis supplied)
"55 . . . An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where . . . 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."
The operative part of the judgment put it this way:
"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. 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."
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.
Is there another basis of jurisdiction?
"The jurisdiction of this Court, which is entrusted to the holder of the Great Seal as the representative of the Crown, with regard to the custody of infants rests upon this ground, that it is the interest of the State and of the Sovereign that children should be properly brought up and educated ; and according to the principle of our law, the Sovereign, as parens patriae, is bound to look to the maintenance and education (as far as it has the means of judging) of all his subjects. The first question then is, whether this principle applies to children born out of the allegiance of the Crown ; and I confess that I do not entertain any doubt upon the point, because the moment that it is established by statute that the children of a natural born father born out of the Queen's allegiance are to all intents and purposes to be treated as British born subjects, of course it is clear that one of the incidents of a British born subject is, that he or she is entitled to the protection of the Crown, as parens patria."
"The court here always retains a jurisdiction over a British subject wherever he may be, though it will only exercise it abroad where the circumstances clearly warrant it: see Hope v Hope (1854) 4 De GM & G 328; In re Willoughby (1885) 30 Ch D 324; R v Sandbach Justices, ex p Smith  1 KB 62."
The Law Commissions in their Report also recognised its continued existence, while pointing out that "there appears to be no reported decision in which jurisdiction to make a wardship order has been based on the allegiance of a child who was neither resident nor present in England and Wales" (see Law Com No 138, BAILII:  EWLC 138, paras 2.9 and 4.41). In fact, Hope was just such a case, as the boys in question had been born in France to British parents, had never lived here (although they had been brought here for a few days by their father), and were in France when the proceedings were begun.
i) The father is now estopped from denying that the three older children are habitually resident here. There is no obstacle to their future being decided in this country, which is undoubtedly the country with which they had the closest connection until they were prevented from leaving Pakistan to return here in November 2009.
ii) The basis upon which the father proposed to mount a forum non conveniens argument in relation to the older children was that the High Court did not have jurisdiction in relation to Haroon. If it is determined that the High Court should exercise its jurisdiction in relation to Haroon, that argument disappears. The father should not be permitted to raise any other arguments in relation to the older children which he could have raised at first instance.
iii) Nevertheless, arguments as to the appropriate forum in which to decide Haroon's future will be relevant to whether it would be right for the High Court to exercise its inherent jurisdiction based on nationality in his case.
iv) Among those arguments will be the practicability of the mother litigating the children's future in Pakistan, in the light of the findings already made by the judge. How reasonable is it to expect her to return to that country, given what happened to her there previously? Conversely, how reasonable is it to expect the father to return here, where he was born and has lived for most of his life and has property and other family members?
v) The circumstances in which these children came to be in Pakistan, and the coercion to which their mother was subject, while not determinative, are highly relevant factors.
vi) It is troubling that these proceedings have been continuing for so long without any inquiry being made about how the children are. Children and Families across Borders (formerly International Social Service) have helpfully intervened to suggest how this might be done, and the judge may wish to consider what they say.
i) The order made by the judge for the return of the children to England, including the youngest, was an order "...relating to…the exercise…of parental responsibility" within the terms of Articles 1(1)(b) and 2(7) of the (directly effective) Council Regulation EC 2201/2003 ("Brussels II revised").
ii) It follows that the jurisdiction of the English court falls to be exercised on one or more of the bases set out in Articles 8 to 14 of Brussels II revised, and that the primary basis is, as provided for by Article 8, the habitual residence of the child at the time at which the court was seised of the application by Mother.
iii) The order made by the judge was not a "Part I order" within the terms of the Family Law Act 1986, and therefore the jurisdiction of the English court is not confined by that Act to the basis of the habitual residence of the child.
iv) The order made by the judge was made in the course of the court's very longstanding wardship jurisdiction over children, which has always been available in the case of a child who is a British national, irrespective of the child's habitual residence or current whereabouts.
v) As a matter of English law, this nationality based jurisdiction should be exercised with great caution in a case where the habitual residence of the child in England is not established, but there will be some instances where it is proper to exercise it.
vi) If it be the case that the youngest child is not habitually resident in England, he is not habitually resident in any State which is a member of the European Union. In that event, if it is proper under English law for the English court to exercise jurisdiction on the basis of his nationality, such jurisdiction is available to the court within Brussels II Revised through Article 14.
vii) The judge has not had the opportunity to consider the exercise of jurisdiction in relation to the youngest child on the basis of his nationality. The case should be remitted to her to address this possibility, and also for her to consider Father's application to stay the English proceedings on the grounds that Pakistan is on the facts a more convenient and suitable forum for the determination of the children's future.
viii) The factors set out in Lady Hale's judgment at paras 64 and 65 will be amongst those potentially relevant to the judge's remitted enquiry. I also agree that if Father is to be permitted to adduce further evidence it must be limited to evidence which addresses the remitted issues and does not attempt to re-open the factual matters on which the judge has already made findings: see para 66 of Lady Hale's judgment.
ix) There is no occasion for us to resolve the difficulty presented by Owusu v Jackson nor its impact (if any) on family cases governed by Brussels II revised.
Habitual residence: the youngest child
"…is a question of fact to be decided by reference to all the circumstances of any particular case."
He then went on to offer a number of general guides to the determination of the issue. Immediately after the proposition just cited he said this:
"The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers."
It will be seen that that immediately following passage offers at least three generally stated propositions, many of which have since been treated in some quarters as amounting to propositions of law. One is that an habitual residence in country A may be abandoned in a single day. A second is that habitual residence in country B cannot be established (or, as English lawyers are prone to say, "acquired") in a single day, and a third is that an infant who is in the sole lawful custody of his mother will necessarily have the same habitual residence as she has (or, as English lawyers are prone to say, will "derive" his habitual residence from hers).
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 AG 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 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"
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 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."
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  EWHC 49 (Fam),  2 FLR 163, endorsed by the Court of Appeal at  EWCA Civ 865.
viii) Generally speaking, an infant will share the habitual residence of the parent(s) with whom he or she lives. In Mercredi v Chaffe at paras 54 – 55 the court said:
"54. 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.
55 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."
ix) In exceptional circumstances a person may have no habitual residence: A's case at para 43.
"One could construct a rule by which a newly born child was presumed to take on birth the habitual residence of its parents or custodial parent. But the rule would be a legal construct divorced from actual fact which is what the court in B v H (Habitual Residence: Wardship)… said that it was anxious to avoid and which has been rejected in all the earlier decisions of this court. It would also run contrary to this court's acceptance in cases such as Al Habtoor v Fotheringham… that a child's habitual residence is not to be treated as necessarily the same as that of his parents."
"As regards the youngest child, H, the position is different. He was born in Pakistan and has never set foot in England and Wales. In respectful disagreement with Thorpe LJ, I agree with Patten LJ, for the reasons he gives, that it follows that H cannot be said to have been habitually resident in England and Wales at the date of either order. The decisions of this court in In re M (Abduction: Habitual Residence)  1 FLR 887 and Al Habtoor v Fotheringham  1 FLR 951 show that the question of whether a person is habitually resident in a particular country is one of fact. They further show that an essential ingredient in the factual mix justifying an affirmative answer is that the person was at some point resident in that country; and that it is not possible to become so resident save by being physically present there. If there has been no residence there, there can be no habitual residence there."
For his part, Patten LJ, at 47, derived from the same cases a "boundary" to the effect that:
"The acquisition of habitual residence in any country requires the adult or child in question to be physically present there."
He returned to that proposition at 60, saying:
"As the cases recognise, residence denotes and involves a physical presence."
"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 residence 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."
To like effect, Millett LJ said simply at 896:
"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."
It was sufficient for the decision that that independent habitual residence was not altered simply by the wish of one parent. It is unsurprising that the fact that the boy had remained in India was treated as an additional reason why his habitual residence was still there. He had clearly established an habitual residence independent of his parents. The court did not have before it the case of an infant who has no independence of his parents but is by contrast integrated into the family unit of one of them.
"would also clearly be inconsistent with the approach set out in Mercredi v Chaffe …. which contemplates a detailed examination of whether a child's presence in a particular jurisdiction involves a sufficient engagement with a settled family life in that place as to amount to habitual residence."
Of course the enquiry in both A's case and Mercredi v Chaffe would involve a detailed examination of the connection or engagement of the child with a settled family life in Finland or France respectively, but that was because the issue in those cases was whether the family unit as a whole had sufficiently settled to be habitually resident in the new country. In neither case did the court have to consider the case of an infant who is an integrated member of a family unit which was habitually resident in State A although currently detained against the will of the adult in State B. Whilst in both cases the court incorporated into its decision, at paras 38 and 49 respectively, the need for other evidence "in addition to mere presence" it is crystal clear that this was said in order to demonstrate that mere presence was not automatically sufficient. Neither court was concerned with the question whether presence is always necessary.