Posts
Jeremy D. Morley
In an
interesting case on habitual residence, on July 30th an English
court ruled that a 15 year old child passing through England en route “home”
from Switzerland to Zimbabwe had no habitual residence and that in the absence
thereof England could and should assert custody jurisdiction under the 1996
Hague Child protection Convention. In the
Matter of the Children Act 1989 and in the Matter of the Hague Convention of 19
October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement And
Co-Operation in Respect of Parental Responsibility and Measures for the
Protection of Children. [2015] EWHC 2299 (Fam).
The Court applied the test of
habitual residence set forth in UK Supreme Court’s cases of A
v A and Another (Children: Habitual Residence) (Reunite International
Child Abduction Centre and Others Intervening) [2013] UKSC 60 and Re
KL (A Child) (Custody: Habitual Residence)(Reunite: International Child
Abduction Centre Intervening) [2013] UKSC 75. That test is "the
place which reflects some degree of integration by the child in a social and
family environment" in the country concerned.
Two
further relevant points of principle were held to be as follows: i) That
parental intent does play a part in establishing or changing the habitual
residence of a child: not parental intent in relation to habitual residence as
a legal concept, but parental intent in relation to the reasons for a child's
leaving one country and going to stay in another. This should be factored in,
along with all the other relevant factors, in deciding whether a move from one
country to another has a sufficient degree of stability to amount to a change
of habitual residence. ii) Where the child is older, in particular one who is
an adolescent or who should be treated as an adolescent because he or she has
the maturity of an adolescent, the inquiry into his integration in the new
environment must encompass more than the surface features of his life there.
Applying this test to the facts of
the case, the Court found that the child was not habitually resident in
Zimbabwe, contrary to the assertion of his mother and despite his Zimbabwean
nationality, because he had never lived there and had spent relatively little
time there, and only when in residential school there.
Nor was he habitually resident in
Switzerland, even though he had last lived there, considered it to be his home
and wanted to remain there, because his Swiss residence permit had expired, he
would be unlikely to be able to return there legally and the Swiss authorities
insisted that he should not be considered to be habitually resident there.
Finally, he was not habitually
resident in Canada even though he had sent several tears there because he had last
lived there more than three years previously.
The English Court then determined
that under the 1996 Convention, it had the power to assume jurisdiction when
there was no habitual residence and a child was merely physically present in
the United Kingdom, even through the child was not a U.K. national and had
lived there. the Court stated that, “The
court is satisfied the court has jurisdiction on the basis that [Name Withheld]
had no habitual residence in any country at the time the court was seized and
pursuant to Article 6(2) of the Hague Convention 1996 Convention the courts of
England and Wales have substantive jurisdiction based on the child’s presence
here.”
Accordingly the Court upheld an
interim care order that had been issued in respect of the child. The order
placed him in the care of the London Borough of Sutton until the finalization
of the proceedings and provided that an inquiry would be made through a lawyer
qualified in Alberta, Canada to advise the Court on the feasibility and
legality of placement options for the child in Canada, where his sister is
living.
