Tag Archives: habitual residence

Children’s wishes and feelings about their habitual residence.

This is a post by Sarah Phillimore

What happens if a local authority wants to make an application for a care order regarding a child who comes from another country?  The Courts of England and Wales only have jurisdiction to make care orders if children are ‘habitually resident’ in the UK – mere physical presence is not enough. Although the Supreme Court have repeatedly said this is a ‘simple matter of fact’ it is clear that in practice it is not always easy to establish a child’s habitual residence.

i have no idea what the impact of Brexit will be on any of this; watch this space. 

What power does the court have to make orders about children who come from another country?

Jurisdiction derives from habitual residence.

The following basic principles can be derived from these authorities Re F (A Child) [2014] EWCA Civ 789; Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] FLR:

  • the jurisdictional reach of the courts of England and Wales in relation to care proceedings is not spelt out in any statutory provision.
  • Jurisdiction was normally determined by the habitual residence or physical presence of the child.
  • However, this was fundamentally modified by the Regulation Brussels II revised (BIIR) which applies to determine the jurisdiction of the English court in care proceedings, irrespective of whether the other country is a Member State of the European Union: see A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, para 30, and In re L (A Child: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2013] 3 WLR 1597, para 18..
  • The basic principle, set out in Article 8(1) of BIIR is that jurisdiction is founded on habitual residence. It follows that the courts do not have jurisdiction to make a care order simply because a child is physically present.
  • The court must deal with this matter at the outset. The court should set out explicitly the basis upon which it has accepted or rejected jurisdiction. A declaration with regard to habitual residence cannot be made by default, concession or agreement but only if the court is satisfied by evidence.
  • If it is necessary to address the issue before there is time for proper investigation and determination, the following suggested recital should be used: “Upon it provisionally appearing that the child is habitually resident…”.


Habitual residence is a ‘matter of fact’.

The Supreme Court have repeatedly declared that ‘habitual residence’ is no more than a ‘simple fact’ which should be determined without any gloss. That arguably optimistic declaration has to be set against the number of times in fairly recent history that cases involving habitual residence have come before the Supreme Court – suggesting that determination of this ‘simple fact’ is a far from simple exercise and reflects the greater mobility of people in recent times and the wide variety of circumstances which impact on families, their composition and their location.

The basic proposition is that habitual residence is established by the degree of integration by the child is a ‘social and family environment’. See A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] ‘

  • habitual residence can in principle be lost and another habitual residence acquired on the same day.
  • habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
  • the test adopted by the European Court is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question. This is the preferred test.
  • Factors to take into account when assessing integration are
    i. The duration, regularity, conditions and reasons for being in the country
    ii. The child’s nationality
    iii. The place and conditions of attendance at school
    iv. Linguistic knowledge
    v. Family and social relationships in the country
  • The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
  • The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
  • it is possible that a child may have no country of habitual residence at a particular point in time.
  • For those children who have no habitual residence, Article 13 of Brussels II provides that where a child’s habitual residence cannot be established and jurisdiction cannot be determined under Article 12, the courts of the Member State where the child is present have jurisdiction.

Habitual residence requires physical presence.

Physical presence is a clear necessary precursor to a finding of habitual residence. In In the Matter of A (Children) (AP) [2013] UKSC 60 the Supreme Court by a majority agreed that a new born baby could not claim habitual residence in the UK even though it was his mother’s place of habitual residence and she had been coerced into leaving the country to give birth. However the Supreme Court agreed it was possible in such extreme circumstances to order the child’s return to the UK using the inherent jurisdiction.

The Court of Justice of the European Union (CJEU) ruled in 2017 that Article 11(1) of the Brussels II bis Regulation:

must be interpreted as meaning that, in a situation in which a child was born and has been continuously residing with his or her mother for several months in accordance with the joint agreement of the parents in a Greece, while in Italy they had their habitual residence before birth, the initial intention of the parents as to the return of the mother accompanied by the child in Italy cannot allow the child to be regarded as having his or her habitual residence in Italy. The CJEU concludes that in such a situation the refusal of the mother to return to Italy accompanied by the child cannot be regarded as an ‘unlawful displacement or non-return’ within the meaning of Article 11(1).

This case seems to resolve the dilemma, dividing national courts, as to whether the physical presence of the child in the territory of a state is a necessary precondition for establishing the child’s habitual residence

Children only recently present or intermittently present in the jurisdiction

These situations require closer examination in light of the requirement of integration into a social or family environment as necessary to establish the ‘fact’ of habitual residence. It is clear that the position of young and dependent children cannot easily be seen in isolation from the position of their primary carer. See A v A (Children: Habitual Residence) [2013] UKSC 60: “The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent.”

However this does not mean that the perceptions of older children about where they habitually reside are irrelevant. See Re: LC (Reunite: International Child Abduction Centre intervening) [2014] UKSC 1.[43] Lord Wilson: It will be clear from my formulation of the question in para 1 above that in my view it is, in principle, the state of mind of adolescent children during their residence in a place that may affect whether it was habitual.

However,  judicial dicta from other authorities does not support  ‘state of mind’ as determinative.

See Re R (A Child) [2015] EWCA Civ 674 where the Court of Appeal considered the circumstances of a 4 year old girl S. She was born in 2010 in Morocco to an American mother, who had lived in England since the age of 13, and a Moroccan father. Shortly, after her birth, the mother travelled to England and fraudulently registered the birth in Kent. Thereafter, she travelled to and from various locations before returning to the UK in March 2013. In October 2013 S suffered serious injuries and was placed in foster care. The local authority did not commence care proceedings until April 2014.

Given by the time protective measures had been taken S and her mother had been living in the UK for over a year, there seems little doubt as a matter of fact that S was habitually resident ‘at the relevant time’ i.e. the making of the care order application but it was argued on behalf of the father that S’s life had been so unhappy with a neglectful mother, that it could not be said she was ‘integrated’ into a social environment and therefore her habitual residence was in fact Morocco.

Mr Justice Hayden decided that the court had jurisdiction to make a care order with respect to S on the basis that S’s habitual residence was, and had been throughout her life, the United Kingdom. The father’s appeal was dismissed. The CoA were critical of the judge’s finding that S had been ‘habitually resident in the UK all her life’ as all that was needed was a finding that S had habitual residence at the relevant time. However, his decision was not ‘perverse’ given the complexities of this case, including the dishonesty of the parents and the mother’s ‘frequent and erratic’ changes of location.

Mr Justice Hayden at first instance said this about integration

‘Integration’ as a concept involves a fusion of both the factual and the emotional, it is where a child feels settled, secure, happy and where the focus of his interests and attachments lie. It is not merely geographical, identifying habitual residence requires much greater nuance than that, drawing inferences from facts, the parents’ conduct, the feelings a child communicates and what the child may say. Lord Wilson encapsulated the point in Re LC (supra) at para 37 emphasising that integration encompasses more than the ‘surface features’ of a child’s life.”

This did not entirely meet with the approval of the Court of Appeal: McFarlane LJ commented:

“When determining habitual residence there is no requirement that, to be sufficient to support a finding, the individual needs to be happy, well cared for or free from abuse. The ‘social and family environment’ into which a child might be integrated may include both positive and negative factors. These will not be irrelevant.”

Thus it is conceded that it is not possible to claim that any period of time spent in another country during which a child was unhappy must then automatically preclude a finding of habitual residence in that country.


All of these discussions, while interesting, serve most usefully in my submissions to reflect the profound difficulties of applying general principles to the probably infinite variety of circumstances in which families find themselves.

I suggest that a pragmatic approach must be taken. The importance of habitual residence is clearly underpinned by asking ‘what jurisdiction is best able to make decisions about a child’s welfare’. And that jurisdiction is usually the one where the child actually lives or has spent the most time. However, the court will need to look beyond this starting point and the wishes and feelings, particularly of older children, may well be relevant.

Care proceedings and children from other European Countries

What happens when a child has a particular connection with another European country but is in care proceedings in England?

Just as we must respect and trust the competence of other member states, so must they respect and trust ours.

EDIT May 2021 – the landscape of these cases will have shifted following Brexit. We need to see how law and policy respond to these changed circumstances and will update. In the interim, treat with caution any assertions about the applicability of European law as this post was mainly written pre Brexit. 

Article 8.1 of Council Regulation (EC) No 2201/2003 known as ‘Brussels II revised regulation’ or ‘BIIR’ sets out the primary rule that a child’s case should be heard by a court in the country where that child is ‘habitually resident’ (i.e. the country where the child is integrated into social and family life). BUT under article 15 the courts of the country of habitual residence can transfer the case to another country IF that court would be ‘better placed’ to deal with it and such a transfer is in the best interests of the child. 

This is an increasingly important issue for care proceedings in England as free movement of families within the European Union has led to many children living in countries which are not where their parents were born. Sometimes those children come to the attention of Children’s Services because there are concerns about how they are being parented. 

BIIR is discussed in more detail below, along with the two important cases of  Re E (A Child) [2014] EWHC 6 (Fam) and the Supreme Court decision in Re N [2016] which set out the principles an English court must use to determine if such a case should be heard in England or should rather be transferred to the European country from which the parents’ originate. 

The Court of Appeal considered the issues in Re N in 2015. See further our post with regard to the timing and content of that judgment

Brussels II revised – what is this?

Brussels II Regulation (EC) No 2201/2003 is a European Union Regulation setting out what should happen when there is a ‘ conflict of law’ between member states in family law; in particular those issues relating to divorce, child custody and international child abduction. It replaces Convention Council Regulation (EC) No 1347/2000 of 29 May 2000. It is usually referred to by the shorthand ‘BIIR’.

BIIR will be important to consider when the court deals with care proceedings involving people from different European countries who may not wish to accept the jurisdiction of the court of England and Wales.

The court has confirmed that it does NOT apply to adoption or measures preparatory to adoption, see paragraphs 19-23 of the judgment in  CB (A Child) [2015] EWCA Civ 888, a long running case involving direct intervention from the Latvian authorities as the LA had not informed them of the care proceedings in 2012, when they should have done.

The intent behind BIIR is that disputes about children should be dealt with in their country of habitual residence wherever possible. See Recital 12:

The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.

So when can the courts in England and Wales have jurisdiction?

The usual approach in the family courts used to be that if a child is habitually resident or even just physically present in England and Wales, the court had jurisdiction to deal with care proceedings about that child. (See Re R (Care Orders: Jurisdiction) [1995] 1 FLR 711, Re M (Care Orders: Jurisdiction) [1997] 1 FLR 456 and Lewisham London Borough Council v D (Criteria for Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449).

However, that has changed fundamentally with the application of BIIR.  The courts now hold that this applies even if the other country is NOT a member of the EU.

Article 8(1) of BIIR sets out that the jurisdiction will depend on habitual residence and this must be the starting point of any inquiry into jurisdiction. However, a court can make orders if the child is physically present but his habitual residence cannot be established  – see Article 13(1).

Habitual residence – what does this mean?

This will be decided looking at the principles set out in the case of A v A and Another (Children: Habitual Residence) [2013] UKSC 60. See paragraph 54 of the judgment. See also the Supreme court decision in Re B (A Child) [2016] UKSC4.

To be ‘habitually resident’ in a country you will require some degree of integration in that country, such as going to school there. Whether or not a child is ‘habitually resident’ in a particular country is essentially a question of fact:

  • habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
  • The test adopted by the European Court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
  • The test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors.
  • The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
  • The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
  • It is possible that a child may have no country of habitual residence at a particular point in time.

Urgent cases

This is dealt with by Article 20 of the Regulation, which allows a court “in an urgent case” to take “provisional, including protective, measures” until the courts of the Member State with jurisdiction has taken the measures it considers appropriate.

See further Re B (A Child) [2013] EWCA Civ 1434,  where the mother’s appeal was allowed against a decision that a court had jurisdiction to make orders with regard to her child who was habitually resident in Sweden. Instead, the Court of Appeal made a declaration under Article 17 of BIIR that the court had no jurisdiction.

Article 15 transfer – Asking another country to get involved.

See paragraph 5 of the Supreme Court judgment in Re N. Even if the court does have jurisdiction under BIIR, article 15 allows it  to request the court of another Member State to take over the case, via its Central Authority IF:

  • the child has a particular connection with that other State – for e.g. the child is a national of another country.
  • the other court would be better placed to hear the case, and
  • it is in the best interests of the child – this is the crucial issue which was subject of argument before the Supreme Court in re N and is discussed further below.

The Vienna Convention – what is it?

The Vienna Convention on Consular Relations of 1963 is an international agreement that sets out  a framework for consular relations between independent countries. It is clear that prior to 2014, LAs and lawyers were not aware of their obligations under the Convention. Hopefully that situation is now remedied. In care proceedings no court should stand in the way of  free communication and access between a party who is a foreign national and the relevant consular authorities of that foreign state. A consul normally operates out of an embassy in another country, and performs two functions:

  • protecting the interests of their citizens who are in the host country; and
  • promoting the commercial and economic relations between the two countries.

Article 36 of the Convention is headed “Communication and contact with nationals of the sending State.” It states that:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

Guidance relating to the Vienna Convention in care proceedings

In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.

Further, whenever the court is sitting in private it should normally allow any request from either the foreign national or from the relevant consular authorities for an accredited consular official to:

  • be present at the hearing as an observer in a non-participatory capacity; and/or
  • to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.

Whenever a party, whether an adult or the child, who is a foreign national

  • is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or
  • is detained

the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so without delay.

However the Vienna Convention does NOT impose a duty in all circumstances to inform the foreign state – see the case of Re O in 2021 for an example of a case where it would be directly contrary to the child’s welfare to give information about her to the DRC.

Re E 2014 – Slovakia

Re E involved a 12 year old boy of a Slovakian mother and a British father. E had lived in the UK all his life but had Slovakian citizenship. During the care proceedings, his mother went back to Slovakia.

The Slovakian Central Authority made a request to the English Central Authority seeking information pursuant to Article 55 of Brussels II Revised (BIIR). Article 55 provides that countries co-operate on matters relating to parental responsibility for children. The Central Authorities in Member States must collect and exchange information on the situation of the child, on any procedures under way, and on decisions taken concerning the child. Central Authorities must also help the courts in different countries communicate with one another.

The request referred to the fact that a media campaign had been started in Slovakia and that the case had become “extremely sensitive” and “a focus of attention”. It sought information about the outcome of a forthcoming court hearing.

The court ordered the LA to disclose information to the Slovakian Central Authority and the Head of the Consular Section of the Embassy of the Slovak Republic in London was allowed to be present in court as an observer.

The Central Authority in this case confirmed that it did accept the jurisdiction of the court. However, there have been other cases where the right of the English court to make orders regarding children from other European countries has provoked considerable controversy, particularly as a particular myth has grown up that only three countries in Europe permit ‘forced adoption, being the UK along with Croatia and Portugal. (This is untrue – every European country permits adoption without the parents consent. See further discussion in this post by the Transparency Project). Thus the President set out guidance with regard to the following issues:

  • Brussels II revised [BIIR]
  • Articles 36 & 37 of the Vienna Convention on Consular Relations of 24 April 1963.

The President stated at paras 13 and 14 of his judgment:

Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.

In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns.

He made it clear that good practice will from now on require that in any care proceedings with a European dimension, the court must set out clearly in both its judgement and order:

  • the basis upon which it either accepts or rejects jurisdiction,  in accordance with the relevant provisions of BIIR;
  • If the court decides to exercise or refuse to exercise its powers under Article 15, what are the reasons for this.

The lesson for UK family practitioners – the ‘sins of insularity’.

The President repeated what he had said in an address at the International Hague Network of Judges Conference at Windsor on 17 July 2013:

Over the last few decades interdisciplinarity has become embedded in our whole approach to family law and practice. And international co-operation at every level has become a vital component not merely in the day to day practice of family law but in our thinking about family law and where it should go …

For the jobbing advocate or judge the greatest changes down the years have been driven first by the Hague Convention (now the Hague Conventions) and more recently, in the European context, by the Regulation commonly known as Brussels IIR. They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.

It is so deeply engrained in us that the child’s welfare is paramount, and that we have a personal responsibility for the child, that we sometimes find it hard to accept that we must demit that responsibility to another judge, sitting perhaps in a far away country with a very different legal system. But we must, and we do. International comity, international judicial comity, is not some empty phrase; it is the daily reality of our courts. And be in no doubt: it is immensely to the benefit of children generally that it should be.

Re N [2016] – the real ‘best interests test’.

Interestingly, the Supreme Court took a rather more bullish approach to the issue of respect for other jurisdictions. As Lady Hale commented in para 4 of that judgment:

It goes without saying that the provisions of the Regulation are based upon mutual respect and trust between member states …. this principle goes both ways. Just as we must respect and trust the competence of other member states, so they must respect and trust ours.

The issue which was at the heart of the judgment was what exactly was meant by ‘best interests’ when looking to transfer a case to another country under article 15. The first judge to hear Re N decided that it should be transfered to Hungary as the country where the children’s parents came from. The local authority and the Guardian appealed as they thought it would be better for the children to be adopted by their current foster carers and they had lived in England all their lives. The Court of Appeal decided to uphold the first judge’s decision to order a transfer and thus a further appeal was made to the Supreme Court.

Lady Hale identified the key question at para 28 of her judgment:

What on the true construction of article 15 are the requirements before the English court can make a request to transfer a care case to another member state?

The court was critical of the development in the case law of the ‘attenuated welfare test’ which appeared to have arisen out of considering what ‘best interests’ meant in regard to a different article entirely (article 12.3). Lady Hale commented in para 44

The court is deciding whether to request a transfer of at the case. The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different but it is wrong to call it ‘attenuated’… there is no reason at all to exclude the impact upon the child’s welfare, in the short or longer term, of the transfer itself….

Therefore the Supreme Court were clear that the first Judge was wrong to accept that because he found the Hungarian court was better placed to hear the case, that it necessarily followed it would be in the best interests of the children to transfer it. He should have addressed the short and long term consequences of the transfer. The short term consequences of transfer were:

  • the children would be removed from where they had lived for most of their lives where they were happy and settled;
  • they would be transferred to a Hungarian foster placement about which the court knew nothing other than the carer spoke English;
  • The country, the language and the surroundings would be completely unfamiliar to them.

Also, when considering long term consequences, it was wrong to present the case as involving simply two options – foster care in Hungary or closed adoption in the UK. The Supreme Court noted that there were ‘several other options’ in between.

Will the CJEU (European Court of Justice) decide that article 15 apply to care proceedings where the care plan is for adoption?

This issue is yet to be determined by the CJEU who are currently considering a case referred by the Supreme Court of Ireland. But the Supreme Court took the view they would continue on the basis that article 15 does apply otherwise the considerable delay already incurred in these proceedings would continue. Watch this space.

Further Reading

For an example of what goes wrong if the issues of jurisdiction aren’t grappled with at an early stage, see the case of Re F (A Child) [2014] EWCA Civ 789.

See this post from the Transparency Project about the discussions at a workshop dealing with cross-border child protection issues, hosted by Dr Claire Fenton-Glynn and Dr Lamont in November 2015.

See the advice from the Department of Education in July 2014: ‘Working with foreign authorities: child protection cases and care orders’

This advice is non-statutory and is not meant to be a complete statement of the relevant law. It was intended to be reviewed before July 2015. It sets out:

  • a set of principles for social workers working on child protection cases and care orders, where the child has links to a foreign country;
  • a summary of the main international legislation;
  • guidance on agencies and organisations that social workers can seek help and advice from, or provide information to when working on these cases; and
  • sign-posts to other relevant guidance.

The International Child Abduction and Contact Unit (ICACU) has published a form and guidance notes where co-operation into and out of the jurisdiction under either Brussels IIa or under the 1996 Hague Convention is required in care proceedings.

For a case involving a ‘relinquished baby’ where the parents wanted an adoption in the UK but the Latvian authorities disagreed see in the Matter of RA [2016]. This case considers the impact of ‘limping adoption’, i.e. adoption orders recognised in the UK that may not be in other European countries.