In re M (a Minor) (Habitual Residence) (UK 1996)
Court Of Appeal, Times Report 03 Jan 1996
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In re M (a Minor) (Habitual residence)
Before Lord Justice Millett and Lord Justice Balcombe
[Judgment December 20, 1995]
A dispute over a child's habitual residence under the Hague
Convention on the Civil Aspects of International Child Abduction
(Schedule I 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.
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In July 1995 the mother had withdrawn her consent and by an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) ([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 the continued agreement of both parents to make that
situation continue. Despite the normal principle that each parent
can act unilaterally it must be possible for either parent in that
position, and in the absence of a court order, to revoke their
agreement to their child being habitually resident abroad, so as
to have the dispute between them resolved in their own home
country where they both are."
His Lordship had difficulty in following that particular piece of
argument. It treated habitual residence as a legal concept whereas
the House of Lords in In re J (a Minor) (Abduction: Custody
rights) ([1990] 2 AC 562) had said it was a question of fact.
Someone must be resident to acquire habitual residence. The
child's residence in India could not become a residence in England
and Wales without his ever having left the country. To hold
otherwise would be to abandon the factual basis and clothe the
definition of habitual residence in metaphysical legal concepts.
LORD JUSTICE MILLETT said habitual residence was a question of
fact not an artificial legal construction. It was not possible for
a person to acquire residence in a country while remaining
throughout in another country. Neither parent could change the
child's habitual residence unilaterally.
Having joint responsibility, the parents had decided K should be
resident in India. He was still physically present and resident
there.
Since she did not have sole parental responsibility even had the
mother removed K without his father's consent it could not have
changed his habitual residence. A fortiori a mere decision on her
part could not change his habitual residence.
Even if the mother had had sole responsibility the child would not
be resident in England and Wales while he remained in India.
The dicta of Mrs Justice Hale appeared to be obiter but his
Lordship could not accept them as a correct statement of the law
since it turned habitual residence into an artificial legal
concept contrary to the decision in In re J.
If a single parent sent a child to Australia and after years had
passed decided the child should return, the only place for the
dispute to be tried would be Australia.
Here the parties having physical care of the child had the support
of one of the parents. The judge had assumed that it was a dispute
between the parents. In fact it was a dispute about the future of
the child. Parliament had decided the dispute should be determined
in the country where the child was habitually resident.
Coounsel
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.
Solicitors
Walker Morris, Leeds
Castle Sanderson, Leeds:
Official Solicitor.