Tuesday, December 04, 2012

Re I & Re J: Habitual residence cases are like London buses...

Mr Justice Peter Jackson
A summary of Re I (Habitual Residence) [2012] EWHC 3363 (Fam) and Re J (Habitual Residence) [2012] EWHC 3364 (Fam).

To set the scene, I shall begin this summary somewhat unconventionally by quoting the footnote that Mr Justice Peter Jackson, who heard both cases, added to each judgment:
"By coincidence, during the week that this hearing took place, I also heard the matter of [Re I/Re J], where the issue was also whether the court had jurisdiction in the face of an assertion that a child's habitual residence had been lost as a result of a covert removal. The cases illustrate the similarities and the differences in the facts that determine the question of habitual residence."
Taking the cases in alphabetical order, I will start with Re I. This concerned a a 7½ year old boy known in the judgment as 'M'. M's parents are Nigerian nationals living in Nigeria. M was born in England in March 2005 and was then taken to Nigeria by his parents at the age of 6-8 weeks. In August 2007 they brought him back and placed him in the care of M's maternal uncle, a Nigerian national with leave to remain in the United Kingdom and his wife, a British citizen. M remained with his uncle and aunt until the mother came to visit in the summer of 2012, and took M back to Nigeria, without informing the uncle and aunt. The uncle and aunt applied to the County Court and were granted residence and an order requiring the parents to return M. The question of jurisdiction arose, depending upon whether M was habitually resident in England and Wales when the proceedings were issued.

Mr Justice Jackson set out the law on habitual residence, in particular the statement of Lord Brandon in J (A Minor) (Abduction: Custody Rights) sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442 that the term is "to be understood according to the ordinary and natural meaning of the two words". Unsurprisingly, Mr Justice Jackson attached considerable weight to the length of time that M had lived a settled life in England and to his ties to the uncle and aunt. He found that this was not a case where the parents had any right to change M's habitual residence simply by an exercise of will and accordingly held that M was habitually resident in England and Wales at the time the proceedings were issued.

By way of further coincidence, Re J also concerned a 7½ year old child, but this time a girl, known in the judgment as 'A'. A was born in England in 2005. In 2006 her mother returned to her native United States, leaving A in the care of her maternal grandmother, who was also American but living in England. The grandmother obtained a residence order in her favour. A's father had regular contact with her. In June 2012 contact was due to take place but the grandmother took A to Florida, with the intention of emigrating. A's father applied for and obtained parental responsibility, and subsequently obtained an order requiring the grandmother to return A to England. Once again, the question of jurisdiction arose, depending upon whether A was habitually resident in England and Wales when the proceedings were issued.

Once again, Mr Justice Jackson set out the law on habitual residence (in nine identical paragraphs), but he also went on to discuss section 13 of the Children Act, as the father alleged that there had been a breach of that section when the grandmother removed A from the UK. Without going into the details of that allegation, I will just say that Mr Justice Jackson found that the reality was that A "is an English child who has spent all of her 2500-plus days of life as a habitual resident of this country" and he did not find that the she had lost that status as a result of a contrived absence of 13 days (between the removal and the father's application). Accordingly, he held that A was habitually resident in England and Wales at the time the proceedings were issued.

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