Although the President reads this blog or at the very least is aware that it is “a well-known and respected law blog”* :-
(*sadly that’s probably stronger empirical proof that he DOESN’T read it)
my beautiful piece of legislation, the Residence Schemesidence Act is still not on the statute books. To gaze upon my works, ye mighty and despair, look here
Instead of which, we have this distillation of the many principles on habitual residence in family law, derived from a variety of judicial authorities. Now, bear in mind that this distillation is the work of someone extremely dilligent and bright and who slaved long and hard to make the judicial authorities as SIMPLE as possible.
B (A Minor : Habitual Residence)  EWHC 2174 (Fam)
- In her document Ms Chokowry distils a number of propositions that she contends can be gleaned from the five Supreme Court judgments, addressing habitual residence, delivered since 2013: A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening)  UKSC 60,  AC 1, sub nom Re A (Children) (Jurisdiction: Return of Child)  1 FLR 111 (“A v A”); In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening)  UKSC 75,  AC 1017, sub nom Re KL (A Child) (Abduction: Habitual Residence: Inherent Jurisdiction)  1 FLR 772 (“Re KL”); In re LC (Children) (Reunite International Child Abduction Centre intervening)  UKSC 1,  AC 1038 sub nom Re LC (Children) (Abduction: Habitual Residence: State of Mind of Child) (“Re LC”); In re R (Children) (Reunite International Child Abduction Centre and others intervening)  UKSC 35,  AC 76, sub nom AR v RN (Habitual Residence)  2 FLR 503 (“Re R”); Re B (A child) (Habitual Residence: Inherent Jurisdiction)  UKSC 4,  2 WLR 557 (“Re B”).
- I think that Ms Chokowry’s approach is sensible and, adopt it here, with my own amendments:
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 enquiry must be centred throughout on the circumstances of the child’s life that is most likely to illuminate his habitual residence (A v A, Re KL).
iii) In common with the other rules of jurisdiction in Brussels IIR 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)); Re B (para 42) applying Mercredi v Chaffe at 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 (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 (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 (Re KL, Re R and Re B);
vii) It will be highly unusual for a child to have no habitual residence. Usually a child lose a pre-existing habitual residence at the same time as gaining a new one (Re B); (emphasis added);
viii) In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move (Re B – see in particular the guidance at para 46);
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 (Re R and earlier in Re KL 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 (Re R) (emphasis added);
xi) The requisite degree of integration can, in certain circumstances, develop quite quickly (Art 9 of BIIR envisages within 3 months). It is possible to acquire a new habitual residence in a single day (A v A; Re B). In the latter case Lord Wilson referred (para 45) 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 (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” (Re B supra);
- 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 enquiries 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. Thus:
i) The solicitors charged with preparation of the statements must familiarise themselves with the recent case law which emphasises the scope and ambit of the enquiry when assessing habitual residence, (para 17 above maybe a convenient summary);
ii) If the statements do not address the salient issues, counsel, if instructed, should bring the failure to do so to his instructing solicitors attention;
iii) An application should be made expeditiously to the Court for leave to file an amended statement, even though that will inevitably result in a further statement in response;
iv) Lawyers specialising in these international children cases, where the guiding principle is international comity and where the jurisdiction is therefore summary, have become unfamiliar, in my judgement, with the forensic discipline involved in identifying and evaluating the practical realities of children’s lives. They must relearn these skills if they are going to be in a position to apply the law as it is now clarified.
The simple message must get through to those who prepare the statements that habitual residence of a child is all about his or her life and not about parental dispute. It is a factual exploration.
I greatly admire Hayden J here for being able to spell out those THIRTEEN principles and then in the next breath use words like ‘clear’ and ‘simple’.
Anyway, with those 13 principles in our mind – we’re now super confident that we can deal with any question on habitual residence.
Let us examine the facts of the case at hand
- Mr Gration, who appears on the half of the mother, has provided a convenient chronology setting out the extent of B’s travels. I pause to note that neither the mother nor the father seemed to have any sense that this level of chaos in their child’s life might be detrimental to her welfare. Indeed, the mother seems to have believed that the opportunities for travel, before she started school, were a good thing for her daughter. I emphasise that B is, at the time of this hearing, still only 3 ½ years old.
- Another striking fact of this case is that both parent’s call their child by a different name. The father was asked, by Mr Gration, whether he thought that was a bad thing for his daughter. He responded that he had come to realise, during the course of these proceedings, that other people might think this was a bad idea and he volunteered, in future, to call his daughter by the mother’s chosen name. Mr Gration submits that this reveals little insight into the needs of a child. In addition I also note that when in her father’s care, B has found herself cared for, for quite long periods by babysitters that the father has engaged to look after her and who sometimes have been entirely unknown to her.
- Mr Gration’s chronology, which is agreed, requires to be stated in full:
a) November 2014 – December 2014, to Amiens, France with the mother and the father;
b) 19th December 2014 – 21st January 2015 to London, England with the father;
c) 21st January 2015 – 24th January 2015 to Lille, France with the father;
d) 24th January 2015 – 9th February 2015 to Italy with the father;
e) 9th February 2015 – 16th February 2015 to Paris, France with the father;
f) 16th February 2015 – 18th February 2015 to London with the father;
g) 18th February 2015 in London with the mother;
h) 20th February 2015 – 6th March 2015 to Paris, France with the mother;
i) 6th March 2015 – 28th March 2015 in London with the father;
j) 28th March 2015 – 8th May 2015 to Senegal with the father;
k) 8th May 2015 – 5th June 2015 in London with the father;
l) 5th June 2015 – 22nd July 2015 to Paris, France with the mother;
m) 22nd July 2015 – 29th October 2015 in New York, USA with the mother;
n) 30th October 2015 – 31st October 2015 to Paris, France with the mother;
o) 31st October 2015 – 11th January 2016 in London, at times with the father but also being cared for by others;
p) 11th January 2016 – 13th March 2016 to Senegal with the father.
- By way of completeness it should be added to the above that between the 13th March 2016 and 22nd April 2016 B was in London with the father.
With masterful understatement, Hayden J says this:-
It is obvious from the chronology that B’s habitual residence does not reveal itself instantly.
(I applaud, but ‘back it up’ also works)
Moving on to the see-saw
“Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.”
Well, you know, I’m the dude who explained adoption law with a riff about iguanadons, so I’m perhaps not the UK spokesman for simple analogies. But I have to confess that I’m not sure where the see-saw analogy gets us to with that sort of chronology.
The sensible conclusion, with that sort of chronology is that for the best part of 18 months, this child never had a settled COUNTRY never mind home. The longest B ever goes is about three months before moving across the Atlantic one way or another.
The Judge applies the 13 principles and comes down on London as being the habitual residence. I think you could make a case for New York, London, Paris (not Munich, annoyingly) or Senegal.
Whereas on my rules, probably Paul Young gets some new fans, and the child is habitually resident in Dudley. On the plus side, the complexity of habitual residence law now means that you can ALWAYS make some sort of argument and run up a huge legal bill and squander the scarce resources of the High Court. Oh wait, that’s not actually on the plus side column.
Er, okay, on the plus side, if you read out the case headnote, 2016 EWHC 2174 (fam), the last bit makes you sound ‘street’, because “Fam” is slang now. (Like ‘blud’ or ‘bred’ren’ or ‘squad’ or indeed ‘homies’ if you’re taking it back to the old school).
Suesspicious Minds – law blogger (Fam)