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On appeal from: [2015] EWCA Civ 886

The Supreme Court allowed the appeal on the Appellant’s application for shared residence under the Children Act 1989 by a majority of 3:2 on the basis that his daughter, B, remained habitually resident in England on 13 February 2014.

The respondent had moved to Pakistan with B on 3 February 2014 without the appellant knowing or consenting to the move. The issue for the court to determine was B was still habitually resident in the UK on 13 February 2014 when the appellant made his application for shared residence, unaware that his daughter was now in Pakistan. The High Court and the Court of Appeal dismissed the appellant’s case stating that the English court had no jurisdiction to determine the Appellant’s 1989 Act application because B had lost her habitual residence immediately upon her removal to Pakistan on 3 February 2014. It also stated the inherent jurisdiction over a British national who was neither habitually resident nor present in England should be exercised only if the circumstances were “dire and exceptional”, and this was not such a case.

In giving the lead majority judgment, Lord Wilson stated that the modern concept of a child’s habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be left without a habitual residence; the concept operates in the expectation that, when a child gains a new habitual residence, he or she loses their old one. Wilson reasoned that Lord Brandon’s observation in In Re J (A minor) (Abduction: Custody Rights) that a person may cease to be habitually resident in a country in a single day if he or she leaves it with a settled intention not to return, should no longer be regarded as correct, and Hogg J fell into error in being guided by it.

Lord Wilson therefore concluded that the correct question in this case was whether B had by 13 February 2014 achieved the requisite degree of disengagement from her English environment. He believed that, taken cumulatively, the factors pointing to the conclusion that B had not by 13 February 2014 achieved the requisite degree of disengagement compel the conclusion that she retained habitual residence in England.

 

For judgment, please download: [2016] UKSC 4
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watching the hearing please visit: Supreme Court website