‘Unsettled’ 15 year-old has no habitual residence

Family Law|July 31st 2015

A High Court judge has ruled that a 15 year-old boy who has “lived an unsettled life” has no habitual residence.

The boy, ‘NH’, had “dual Canadian and Zimbabwean citizenship” despite the fact that he was born in South Africa and lived there for the first five years of his life. His family moved to Canada in 2004 where they remained for eight years. He moved to Switzerland with his mother when she married a Swiss citizen, although she has since divorced. Following the move, NH spent time at boarding schools in Zimbabwe and Germany before he began attending a school in Zurich, Switzerland’s largest city.

In April, NH travelled to England to stay with some relatives. The following day, his mother took steps to extinguish his right to live in Switzerland. Shortly afterwards, travelled England to meet NH at the home of some relatives. He alleged that his mother assaulted him and destroyed his Canadian passport during this meeting. As a result, NH was taken into foster care.

The mother did not give consent for NH’s placement to continue and insisted that he was legally resident in Zimbabwe. Before the local authority in England could take any further action, the boy’s habitual residence had to be determined. That would establish which court would have jurisdiction to decide his care arrangements.

Sitting at the Royal Courts of Justice in London, Mr Justice Cobb noted that the mother’s claim was based on the boy’s Zimbabwean nationality and “her intention that NH should move now to live there”. The judge “unhesitatingly reject[ed] her submission” because, despite his nationality, NH had never lived in the country except for a brief period at a boarding school.

Canada was also ruled out as NH’s legal home as it had been three years since he last lived there. Similarly, England was discounted because he had only arrived in the country recently and had not done so with the idea that it would be permanent.

NH claimed that Switzerland was his home, and submitted evidence which supported “the contention that he is integrated there”. However, as his right to live in Switzerland had been rescinded, Mr Justice Cobb could not rule that he was habitually resident there.

The judge declared that this was “a relatively rare case where it is impossible to establish a child’s habitual residence”. He concluded that the English courts would therefore have jurisdiction over the case and urged “a swift, efficient, and child-focused solution to plan for NH’s long term future”.

NH (1996 Child Protection Convention: Habitual Residence) v AH (Mother) & Anor is available to read in full here.

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