Re S (Custody: Habitual Residence)

JurisdictionUK Non-devolved
Judgment Date24 July 1997
Judgment citation (vLex)[1997] UKHL J0724-3
Date24 July 1997
CourtHouse of Lords
In Re S (A Minor) (1997)

[1997] UKHL J0724-3

Lord Goff of Chieveley

Lord Slynn of Hadley

Lord Nolan

Lord Nicholls of Birkenhead

Lord Hutton



My Lords,


I have had the advantage of reading a draft of the speech of my noble and learned friend, Lord Slynn of Hadley. For the reasons he has given, I would dismiss this appeal.


My Lords,


This appeal raises three principal questions:


First, whether the English High Court had jurisdiction on 13 March 1996 to make an order giving interim care and control to the father of an infant E. and subsequently to order that E. remain a ward of court;


Second, whether taking E. on 11 March 1996 from England to Ireland and subsequently keeping him there constituted the wrongful removal or retention of a child within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction ("the Hague Convention") as given the force of law in the United Kingdom by section 1(2) of and Schedule 1 to the Child Abduction and Custody Act 1985;


Third, whether such taking and keeping of E. constituted an unlawful removal of E. within the meaning of Article 12 of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children ("the European Convention") (as given the force of law in the United Kingdom by section 12(2) of and Schedule 2 to the Act of 1985) and of section 23 of that Act.

The First Question

E. was born on 21 January 1995. His mother was an Irish national, his father Moroccan. They were not then, or subsequently, married and it is common ground that as an unmarried father, under English law prior to orders of the English court in his favour, the father had no parental rights in respect of E. It is also common ground that prior to her death E.'s habitual residence was that of his mother so that the question is what was the mother's habitual residence at the relevant times.


She had lived in England with the father from 1990 to July 1995 when she obtained from the Willesden County Court an ex parte interim order for the residence of E. and an interim prohibited steps order. From 3 to 16 August 1995, when she returned to England, E. and his mother stayed with her mother (the first appellant in this case) on holiday in Ireland. Thereafter she stayed in England until the 4 September when she returned to Ireland intending to come back to England in January 1996. In fact she went to England alone from 2 to 7 November 1995 when she returned to Ireland; she went to England again with E. on 16 January 1996 and remained there until she was admitted to hospital in London on 4 March and died there from a brain haemorrhage on 10 March 1997.


E.'s father had looked after him for part of the time whilst the mother was in hospital but on 5 March and 6 March the grandmother and another daughter (the second appellant) respectively came to London and helped to look after E.


On 11 March the two appellants took E. to Ireland where he has lived since. It is at this stage that the maternal family and the father resorted to the courts, they in Ireland, he in England. On the same day, 13 March 1996, the Dublin Circuit Court made an order granting guardianship and care and control of E. to the second appellant, his aunt, and an hour or so later the English High Court made an order granting interim care and control of E. to the father, ordering that the grandmother return E. to the jurisdiction of the English Court. To this end an originating summons to make E. a ward of court, dated 12 March 1996, was issued on 14 March 1996. On 17 April the aunt was joined as a second defendant to the proceedings brought by the father and the wardship was continued.


The High Court's jurisdiction in respect of children so far as relevant is to be found in the Family Law Act 1986. Section 1 of that Act specifies the orders to which Part I applies and includes:

"(d)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 …"

By section 2(3):

"A court in England and Wales shall not have jurisdiction to make a section 1(1)(d) order unless …

(a)the condition in section 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."


The condition in section 3 of the 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."


Since E. was not present in England and Wales at the time that the order was made by the English High Court the question is whether E. was habitually resident in England and Wales on the relevant date, which, by virtue of section 7 of the Act, is the date when an application is made for an order.


The trial judge, Mr. Lionel Swift Q.C., after a hearing lasting eight days and a careful consideration of the authorities as to what constituted "habitual residence" recorded that there was no dispute that the mother was habitually resident in England until 3 September 1995. He then examined extensive evidence as to the movements of, and the relationship between, the parents in the subsequent period and said:

"I am prepared to accept that during the period between September and December [1995] were it necessary to find it, the mother might have been described as habitually resident in Ireland. She was there as part of her regular order of life for the time being, though whether her stay there was for a settled purpose other than to stay there is debatable. But I am concerned with the position at her death. I conclude that when she returned to England in January she became habitually resident here. If I am wrong about that then certainly by the time she died that was the position. In so finding I bear in mind that it takes time in general to establish a new habitual residence. But when she returned here she was returning to her own home, and was intending as I find to make her home here."


Again after examining in detail the evidence as to the period between January and 10 March 1996 he concluded that at the date of her death the mother was habitually resident in England.


In the Court of Appeal and before your Lordships' House the appellants, though contending that E. and his mother were habitually resident in Ireland between 4 September 1995 and 16 January 1996, accepted, so that it is now common ground, that at the date of her death the mother, and therefore E., were habitually resident in England. It is accordingly unnecessary to examine in detail the evidence upon which this finding of the judge was based.


The critical question is thus whether, since he had left England on 11 March, E. was still habitually resident in England on 13 March when Wall J. made his order in the High Court. Had he become habitually resident in Ireland, or at any rate lost his habitual residence here even if he had not acquired an habitual residence in Ireland?


The learned trial judge found that the appellants intended to take E. to Ireland without the father's knowledge and that they did in fact take E. without the father's consent or knowledge. Indeed it is said that the father was ignored or brushed aside by the mother's family after her death. The judge was prepared to accept that "there may be circumstances in which physical possession or care may determine a child's habitual residence," which is a question of fact, and that where a parent takes a child away a new habitual residence may be acquired very quickly. But he continued:

"I am not prepared to accept that a person with no juristic power over a person of this age can change his habitual residence within a day or two. It is not necessary to consider the position of a child kept by such a person over a significant period of time."


In the Court of Appeal Butler-Sloss L.J., with whom the other members of the court agreed, took the same view as the trial judge. In considering the appellants' contention that E. lost his habitual residence in England either when the appellants took over his de facto care on 10 March or when they took him to Ireland on 11 March she said:

"The death of the mother, the sole carer, would not immediately strip the child of his habitual residence acquired from her, at least, while he remained in the same jurisdiction. Once the child has been removed to another jurisdiction, the issue whether the child has obtained a new habitual residence whilst in the care of those who have not obtained an order or the agreement of others will depend upon the facts. But a clandestine removal of the child on the present facts would not immediately clothe the child with the habitual residence of those removing him to that jurisdiction, although the longer the actual residence of the child in the new jurisdiction without challenge, the more likely the child would acquire the habitual residence of those who have continued to care for the child without opposition. Since, in the present case, the English court was seised of the case within two days of the removal of the child, it is premature to say that the child lost his habitual residence on leaving England or had acquired a new habitual residence from his de facto carers on arrival in Ireland."


She rejected two further contentions of the appellants…first that a person having care of, but not having parental responsibility for, a child who did what was...

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