Re M (Abduction: Habitual Residence)
| Jurisdiction | England & Wales |
| Judgment Date | 20 December 1996 |
| Date | 20 December 1996 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Millett and Lord Justice Balcombe
Children - habitual residence - matter of fact not law
A dispute over a child's habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction (Schedule 1 of the Child Abduction and Custody Act 1985) was a dispute about the child's future, not a dispute between the parents. It was to be determined as a matter of fact.
Habitual residence could not be acquired by a child who was not physically resident in the country concerned. The mere act of taking the child to a particular country might not be enough to confer habitual residence.
Where both parents had parental responsibility and had agreed where the child should live, one parent could not by a unilateral decision alter the child's habitual residence.
The Court of Appeal so held allowing an appeal by the father against a decision of Mrs Justice Bracewell made on the mother's application in Leeds on November 30, 1995 that she had jurisdiction in wardship over K, a boy aged three, and ordering that he be returned from India before January 25, 1996.
Mr Allan Levy, QC and Mr Roger Bickerdike for the father; Miss Pamela Scriven, QC and Mr Alasdair Wilson for the mother; Miss Judith Hughes, QC and Mr Robert Cole for the Official Solicitor as guardian ad litem.
LORD JUSTICE BALCOMBE said the mother had been born and raised of Indian parents in Britain. The father had been born and raised in India. They had married by arrangement in India in April 1990. Their habitual residence at all material times had been in England and Wales. Both parents had parental responsibility. They had separated at the end of January 1994.
The parents had agreed that K should live with his paternal grandparents in India. In February 1994 K had gone to India. He had remained there since, and so had spent almost half his life there.
In July 1995 the mother had withdrawn her consent and by an originating summons had initiated wardship proceedings, seeking to invoke the jurisdiction of the English courts.
The judge had decided that K was habitually resident in England and Wales in July 1995. She had followed In re A (Wardship jurisdiction)FLR ([1995] 1 FLR 767).
In that case Mrs Justice Hale had said, apparently obiter: "… even if there had been such an agreement as would change the child's habitual residence for the time being, it would have required...
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