Re KM (A Minor) (Habitual Residence)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Date | 1996 |
| Year | 1996 |
| Court | Court of Appeal (Civil Division) |
MILLETT, LJ AND SIR JOHN BALCOMBE
Child – habitual residence – parents married and living in England – child sent by agreement to India on parents' separation – child remaining in India thereafter – mother changing mind and seeking return of child to England – whether mother's change of mind capable of altering child's habitual residence generally – whether mother's change of mind capable of altering child's habitual residence in England and Wales for the purpose of invoking the jurisdiction of the High Court – principles to be applied.
A boy was born in England on 15 February 1992. The mother was of Indian parents, but had been born and raised in England. Her husband was born and raised in India. The parents underwent an arranged marriage in India in April 1990. At all material times, the parties were habitually resident in England and Wales. The parents separated in January 1994 at which time they agreed that their son should go to live with the paternal grandparents in India, to be brought up by them there until adulthood. The boy went to India in February 1994, and remained in India thereafter. In July 1995, the mother changed her mind and withdrew her consent to the child living abroad. She made the child a ward of court by issuing an originating summons and sought to invoke the jurisdiction of the High Court. On 30 November 1995, Bracewell, J determined that the High Court had jurisdiction to determine the future of the child, and ordered that he be returned to the jurisdiction on or before 25 January 1996. The father appealed.
Held – allowing the appeal: The question to be determined was whether the child was habitually resident in England and Wales in July 1995. It was inappropriate to treat the issue of habitual residence as a legal concept, akin to domicile. Applying Re J (A Minor) (Abduction: Custody Rights) [1991] FCR 129, the habitual residence of a child was a question of fact. Before a person, whether a child or an adult, could be said to be habitually resident, it was clear that he must be resident in that country. This did not require physical presence at all times. Temporary absences, for holidays or for educational purposes would not bring habitual residence to an end. It was found as a fact in this case that the child had become habitually resident in India. However, Bracewell, J found additionally that the child's habitual residence was brought to an end by the mother's change of mind, and that the change of mind also gave the child habitual residence in England and Wales. The mother's change of mind could not alter the fact that the child remained physically resident in India. It was doubtful whether the mother's change of mind could alone alter the habitual nature of the child's residence, however it was not necessary to determine this issue,
as it was clear that the child could not acquire habitual residence in England without ever having been returned to this country. To determine otherwise would have the effect of abandoning the factual basis of the test of "habitual residence" and to clothe it with some metaphysical or abstract basis more appropriate to a legal concept such as domicile. In all probability, therefore, the child was still habitually resident in India. In any event, at the time of the issue of the originating summons on 20 July 1995, he was not habitually resident in England and Wales, and, accordingly, the High Court did not have jurisdiction in this case.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Hague Convention on the Civil Aspects of Child Abduction.
Family Law Act 1986, ss 1, 2, 3, 7 and 41.
Cases referred to in judgment:A (A Minor) (Wardship Jurisdiction), Re[1995] 2 FCR 298; [1995] 1 WLR 298.
J (A Minor) (Abduction: Custody Rights), Re [1991] FCR 129; [1990] 2 AC 562; [1990] 3 WLR 492; [1990] 2 All ER 449 and 961.
M (Minors) (Residence), Re[1993] 1 FCR 718.
Kapoor v Kapoor [1984] FLR 920.
R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309; [1983] 2 WLR 16; [1983] 1 All ER 226.
S (Minors) (Hague Convention: Wrongful Retention), Re[1994] 1 FCR 83; [1994] Fam 70; [1994] 2 WLR 228; [1994] 1 All ER 237.
Allan Levy, QC and Roger Bickerdike for the father.
Pamela Scriven, QC and Alasdair Wilson for the mother.
Judith Hughes, QC and Robert Cole for the Official Solicitor.
LORD JUSTICE MILLETT.I will ask Sir John Balcombe to give the first judgment.
SIR JOHN BALCOMBE.This is an appeal by the father of a little boy, KM, from an order made on 30 November 1995 by Bracewell, J sitting in Leeds whereby, after finding that she had jurisdiction to determine the future of the boy, she ordered that the child be returned to the jurisdiction on or before 25 January 1996.
I take the facts from her judgment. The mother was born and raised in this country of Indian parents. The father was born and raised in India. It was an arranged marriage which took place in India in April 1990. After the marriage, the parents have remained married to each other. At all material times they have been habitually resident in England and Wales. The child of the marriage, K, was born in England on 15 February 1992. Both parents have parental responsibility in respect of him. K lived with his parents in the family home in Leeds. The marriage deteriorated and the parents separated permanently at the end of January 1994.
In January 1994 there was an agreement between the parents that K would go to live with the paternal grandparents in India and spend his childhood there and be brought up by them within their family throughout childhood until an adult.
In February 1994, in pursuance of that agreement, K went to India, where he has remained ever since. I pause there to interpolate that he has been there nearly two years now which is almost half his whole life.
In July 1995 the mother changed her mind, withdrew her consent to K living abroad, made K a ward of court (that is by issuing an originating summons) and sought to invoke the jurisdiction of the High Court. The Judge then concluded:
"On the facts I find that there was an agreement between the parents in January 1994, for [K] to become habitually resident in India, and he did so become habitually resident there."
I now turn to the Family Law Act 1986. Section 1(1)(d) of that Act provides that:
"Subject to the following provisions of this section, in this Part, `Part 1 order' means ... an order made by a ... court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children, –
(i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child ..."
Section 2(3) provides that:
"A court in England and Wales shall not have jurisdiction to make a section 1(1)(d) order unless,
(a) the condition in s.3 of this Act is satisfied, or
(b) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection."
Section 3(1) provides that:
"The condition referred to in s.2(2) of this Act is that on the relevant date the child concerned
(a) is habitually resident in England and Wales, or
(b) is present in England and Wales and is not habitually resident in any part of the United Kingdom ..."
I need not read the remainder of that section which has no relevance to the present case. Finally, under s 7(c)...
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