‘Habitual residence’ must be interpreted in a way that it corresponds to the place which reflects some degree of integration by the child in a social and family environment

Supreme Court of United Kingdom– Deciding on an important issue with regard to the point at which habitual residence of the child was lost, the Court by a ratio of 3:2 observed that the modern concept of a child’s habitual residence operates in a manner that makes it highly unlikely that a child will be left without a habitual residence and such concept operates in the expectation that, when a child gains a new habitual residence, he or she loses their old one.

In the instant case, a girl aged 7 years who is a British National is the centre of the appeal. The respondent (a British national of Pakistani ethnicity) is B’s biological mother and was previously in a same-sex relationship with the appellant (a British national of Indian ethnicity). The couple lived in England and set up home together, but they never became civil partners. As co-parents they took care of the child. However in December 2011 the appellant left after their relationship broke down under acrimonious circumstances. Over the next two years, respondent progressively reduced the level of the appellant’s contact with B. Respondent moved to Pakistan with the child on 3.2.2014 where they have remained ever since. She did not share this decision with the appellant. On 13.2.2014, unaware where the respondent had taken the child, the appellant applied under the Children Act 1989 (“1989 Act”) for orders for shared residence of the child, or for contact with her. This application depended upon showing that the child was “habitually resident” in England at the time it was issued (i.e. 13.2.2014). Later, having learned that respondent had gone to Pakistan with the child, appellant also applied for orders under the court’s inherent jurisdiction over the child (as a British national) that she be made a ward of court and returned to England.

Lord Wilson while giving the lead judgment observed that two consequences flow from the modern international primacy of the concept of a child’s habitual residence, first, it is not in the interests of children routinely to be left without a habitual residence and second, the English courts’ interpretation of the concept of habitual residence should be consonant with its international interpretation. However, the instant case involved a third aspect of the concept of habitual residence i.e, the circumstances in which a child loses his or her habitual residence. The traditional English law approach to this issue is heavily dependent upon parental intention which cannot be the sole criteria in the present case. Allowing the appeal, the Court further held that taken cumulatively all the factors point to the conclusion that the child had not by 13.2.2014 achieved the requisite degree of disengagement from her English environment, hence it can be concluded that she retained habitual residence in England. [In the matter of B (A child), [2016] UKSC 4, decided on 3.2.2016]

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