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A Child can still be Habitually Resident in one country even when living in another

More than once I have commented that the dry dusty pages of High Court judgements can be deceptive. They in fact are the stuff of desperate people whose family lives have imploded. It would be a mistake for anyone interested in the operation of family law, to bypass court judgements because they look boring.

Bailli provides a fantastic service to the public, publishing these judgements which once you get to the heart of them, are tales of how truly heartbreaking issues are resolved.

This week, the case about a little girl, A was published. So too was case of a little boy, M. Coincidentally both appear to be exactly the same age; 7 ½ years old and both were heard around the same time, by the same judge, Mr Justice Peter Jackson.

In the case of the little girl A, she was born in England when her American mother was just 16. She was raised by her grandparents, one American, one English, in England. A’s mother returned to the USA where she subsequently married and had two more children. A’s father was also young and wayward. He has been in prison several times but he had developed a relationship with A as had his mother.

A’s maternal grandparents had a residence order in their favour, which gave them some element of parental responsibility and under Section 13 Children’s Act 1989, the right to remove A from England and Wales for a period of up to 28 days without the consent of her parents.

The maternal grandparents decided that overall the best interests of A would be served by taking her back to her mother in the USA. They chose not to tell the father nor his family, and on 9th June 2012 emigrated to the USA with A.

A’s father went to court within a fortnight, for a parental responsibility order, which he obtained “ex parte” (without notice) from the Judge on 22nd June and he sought the return of his daughter which was granted.

The grandparents challenged the order and Mr Justice Peter Jackson had to decide whether there was jurisdiction to make those orders, which he could only do under the relevant law, “ Council Regulation (EC) No 2201/2003 (shortened to Brussels IIR), if A was “habitually resident” in England and Wales when the parental responsibility order was made on 22nd June when she was actually in the USA.

If she was habitually resident in England and Wales on that date, then her removal was unlawful.

The Judge applying the law held that each case is fact dependent and on the facts, that she was still habitually resident in England, given only “a contrived absence of 13 days” and said “her roots here are deep and her habitual residence did not change as a result of this legally insecure removal”.

Even though the grandparents did have a residence order, and the right to remove the child for 28 days, it does not appear to have occurred to the grandparents that the child could still remain habitually resident for a period in the future, even though she had physically left the country. This gave the father time to make his applications and for the child to be ordered to return to England.

In the second case, the child M was being raised by his aunt and uncle and this time, it was his mother who covertly removed him to Nigeria. His aunt and uncle applied for his return and for the child to be made a ward of court, which was granted by Mrs Justice Barron on the basis the child was still habitually resident in England. The parents challenged the order.

The Judge upheld the decision of Mrs Justice Barron. There was a discussion as to whether a parent who unquestionably does have parental responsibility is legally entitled to remove the child. The Judge found that the child’s family life revolved around his aunt and uncle and they qualified to make an application for residence given they have looked after him for three years, although they had not done so. They had rights to respect for their family life under Article 8 of the ECHR and the covert removal was designed to prevent this. The aunt and uncle had also taken immediate steps to challenge the removal. Given that the child was habitually resident in England the orders that were made by Mrs Justice Barron were valid.

This resolves the jurisdiction issue, but both courts then of course have to decide what to do thereafter – should A be removed to the USA and should M remain with his aunt and uncle? Those are the tougher questions.
What these cases do show however, that even though on the face of it, the grandparents of A and the mother of M appear to have acted lawfully, their covert removal of the children and failure to appreciate the habitual residence can still apply into the future, giving others the opportunity of applying to the court, was their downfall.

For anyone else in a similar position, the answer must always be: if in doubt, always apply to the court for permission.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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