Strand, London, WC2A 2LL
B e f o r e :
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Mr Laing (instructed by Dawson Cornwell) for the Respondent
Hearing dates: 11th April 2018
Crown Copyright ©
The Honourable Mr Justice Keehan :
. "(i) Habitual residence is essentially a question of fact. ('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 enquiry would produce' – per Baroness Hale in A v A, para 54(vii)). 'A gloss is a purported sub-rule which distorts application of the rule' – per Lord Wilson in Re B [para 46]. ?
. (ii) Habitual residence requires 'not the child's full integration in the environment of the new state but only a degree of it' – Lord Wilson, Re B, para 39.
. (iii) It is just about conceivable for a child's habitual residence to be changed unilaterally, even where both parents share parental responsibility and one of them does not agree to the change (the supposed 'rule' against this in the older authorities is, seemingly, no longer good law).
. (iv) Parental intention is a relevant factor, but is not wholly determinative. ?
. (v) A (young) child will most usually have the same habitual residence as their carer; this is all the more so when the child is still an infant. ?
. (vi) The concept is 'child-centred' – it is the child's integration which is being assessed. Thus while the environment of an infant or young child will usually be determined by their main carer(s), this is not necessarily the case with a school-age child, still less an adolescent.
. (vii) There is no minimum time required before a new habitual residence can be established; it depends on the facts of the particular case, but it may be acquired in as little as one day.?
. (viii) It will only be in very unusual cases that a child has no habitual residence - usually there will be a seamless 'transfer'. In Re B, the analogy of a see-saw was used to illustrate this process. It was suggested there that the deeper a child's integration in the old state, 'probably the less fast his achievement of the requisite degree of integration in the new state' [para 46] – but Lord Wilson went on to say that if there has been a great degree of pre-planning, and if all the 'central members' of a family have moved together with a child, then probably the sufficient degree of integration could take place faster. In Re B itself, Lord Wilson said that the question the judge ought to have asked herself at first instance, when considering whether English habitual residence had been lost, was 'whether B had achieved the necessary degree of disengagement from her English environment'; and conversely, 'whether she had achieved the requisite degree of integration in the environment of Pakistan'– paras 48-50.
" If there is one clear message emerging both from the European case law and from the Supreme Court, it is that the child is at the centre of the exercise when evaluating his or her habitual residence. This will involve a real and detailed consideration of (inter alia): the child's day to day life and experiences; family environment; interests and hobbies; friends etc and an appreciation of which adults are most important to the child. The approach must always be child driven. I emphasise this because all too frequently and this case is no exception, the statements filed focus predominantly on the adult parties. It is all too common for the court to have to drill deep for information about the child's life and routine. This should have been mined to the surface in the preparation of the case and regarded as the primary objective of the statements. I am bound to say that if the lawyers follow this approach more assiduously, I consider that the very discipline of the preparation is most likely to clarify where the child is habitually resident. I must also say that this exercise, if properly engaged with, should lead to a reduction in these inquiries in the courtroom. Habitual residence is essentially a factual issue, it ought therefore, in the overwhelming majority of cases, to be readily capable of identification by the parties."