What is Habitual Residence in Private Law Cases?

Private Law (Child Arrangements Programme (CAP))

01 October 2019

In the vast majority of private law cases the issue of habitual residence in respect of a child does not pose an issue. When drafting the orders for the court the section in the CAP template dealing with “habitual residence” is usually filled out without really thinking. Where there is a dispute however, how is this determined by the court?

This issue was central in the recent case of W v L (Forum Conveniens) [2019] EWHC 1995 (Fam).

In that case the facts were these. The parties were both British and Jordanian nationals. They were married in 2010 in Jordan and moved to live in England in 2011. The child concerned was born in 2012 in England. The parties then separated in 2013. Immediately after separation, the father moved back to Jordan, whilst the mother remained in England. The mother then travelled to Jordan, in order to instigate divorce proceedings there.

The father then made an application to see the child and acquired in the Jordanian court an order for him to see the child in a contact centre.

In April 2014, the mother tried to leave Jordan with the child, but was unable to do so because of of an exit ban that the father acquired, on a without notice basis, through the court. The father then left Jordan in May 2015 to return to live in England, with the mother being unable to leave because of the exit ban.

In August 2015, the mother had the exit ban lifted on the basis that the child needed medical treatment, in relation to issues he had with his speech and language development and on the 26 November 2015 she was permitted by the Jordanian court to remain in England, subject to certain caveats.

The mother has been residing in England since 2015 and in April 2017, made an application at the High Court regarding the welfare of the child. Central to that application, was a declaration that the child is habitually resident in England and Wales.

The mother also sort the following orders: an order making the child a ward of court; an order preventing the father removing the child from her care or the jurisdiction of England and Wales; and an order preventing the father from pursuing any further applications in Jordan.

As a consequence of the father leaving Jordan, he had not made himself available to spend time with the child, as ordered by the Jordanian court. The Jordanian court was informed that the father had not taken up the contact that was ordered and the mother contends in a statement before the High Court, that this led the Jordanian court to determine that there was no requirement for any further contact between the child and the father.

The father also in fact had not had any contact with the child since the mother returned to England.

On the 10 June 2017, the High Court made interim orders stipulating that the child shall continue to live with the mother and not to be removed form the jurisdiction of England and Wales. The matter was then listed for two days to begin on the 18 July 2017.

The substantive issues before the court were:whether the child should reside in England with his mother or in Jordan, and what contact should the father have with the child. The father submitted that the Jordanian courts are the appropriate forum and the court therefore deemed him to be making an application to stay the proceedings initiated by the mother, should the court determine that it had jurisdiction in respect of the child.

The court at this hearing was concerned with two questions, namely (a) whether the child is integrated into a social and family life in England and, if so (b) whether it is more convenient for the English Court or the Jordanian court to determine the welfare issues between the parties.

The submissions made on behalf of the mother, were that the child was plainly habitually resident in the jurisdiction of England and Wales, having regard to the test that must be applied, namely whether the child displays some degree of integration in a social and family environment in this jurisdiction. Facts relied on were inter alia:

a) the mother has secure, rented accommodation at the same address since shortly after her return to England in 2015;

b) all of the child’s education and schooling have been in the jurisdiction;

c) the child’s first language is English;

d) the child has been under the care of a speech and language therapist at a local hospital since 2015 and is registered with a GP and dentist;

e) the child has only spent 16 months of his life in Jordan and the remainder of the time he has lived in England;

f) the child has a large group of friends at school and regularly attends playdates with friends.

On the basis of those facts it was submitted on behalf of the mother that the child is fully integrated in social and family life in England, physically, psychologically and emotionally and therefore applying the relevant legal test, the child is plainly resident in the jurisdiction of England and Wales.

The father argued that the Jordanian court was the appropriate legal forum because: the Jordanian court had only allowed the mother to take the child to England for the purpose of obtaining medical treatment; there had been previous proceedings in Jordan; the mother would get a fair hearing in the Jordanian courts, and the child was both of Jordanian and British nationality.

In determining the issue the court applied Council Regulation (EC) 2201/2203, “the regulation” which deals with the issue of jurisdiction between a EC member state and a non-member party state. Article 8(1) of the regulation provides that the courts of a member state shall have jurisdiction in matters of parental responsibility over a child that is habitually resident in that member state, at the time that the proceedings are ongoing. To establish habitual residence the residence of the child must reflect some degree of integration in the social and family environment, established on the basis of all of the circumstances of the specific case.

Where the English courts does have jurisdiction under Article 8, but there are proceedings also in a third party country, like Jordan, the issue comes down to which country is the more convenient one and the principles to decide that issue are these:

a) it is for the party seeking a stay of the English proceedings to establish that it is appropriate;

b) a stay can only be granted where the court is satisfied that there is some other forum available, where the case may be more suitably tried for the interests of all parties and the ends of justice;

c) the court must consider in which country the case has the most real and substantial connection;

d) if the court decides, having regard to the foregoing matters that another forum is more suitable than England, then it should normally grant a stay, unless the other party can show that there are circumstances by reason of which justice requires that a stay should nevertheless, be refused. In determining this, the court will consider all of the circumstances of the case, including those which go beyond those taken into account when considering connecting factors.

The court agreed with the submissions made on behalf of the mother and found without hesitation that the child was habitually resident in England and Wales.

The next question was whether there should be a stay of the proceedings in England, pending the determination of the welfare issues in respect of the child, in the Jordanian courts. The court looked at the factual matrix of the case and decided that the father had not demonstrated that the child was not habitually resident in England and moreover he had not demonstrated that there was another available forum that was clearly and distinctly more appropriate. In the circumstances, the court was therefore satisfied that the English court should proceed to determine the welfare issues.

In conclusion this case shows how the court will decide when a child is habitually resident in England and Wales where there is a dispute, and it is for the party who seeks for the proceedings to be heard in another jurisdiction, to seek a stay by demonstrating that there is a more appropriate forum in another country.


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