New Judgment: Re A Child  UKSC 60
09 Monday Sep 2013
On appeal from:  EWCA Civ 1396 and  EWCA Civ 232.
The Court considered whether the High Court has jurisdiction to order the ‘return’ to this country of a small child who had never been present in the country, on the basis that he was habitually resident here or that he had British nationality. The Court of Appeal by a majority allowed the father’s appeal, on the ground that habitual residence was a question of fact (rather than deriving from the habitual residence of the parents) and required physical presence in the country.
The Supreme Court unanimously allowed the mother’s appeal. Under art 14 of the Brussels II revised Regulation) the common law rules as to the inherent jurisdiction of the High Court continued to apply if the child was not habitually resident in a Member State. The Crown retained the ancient power as parens patriae over those who owe it allegiance as British nationals. Jurisdiction under article 8 of the Regulation depended on where the child was habitually resident. The CJEU had ruled that habitual residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. This depends on numerous factors including the reasons for the family’s stay in the country in question. Four of the Justices held that presence was a necessary precursor to residence. A child could not be integrated into the social environment of a place to which his primary carer had never taken him.