Case No: B4/2012/3345 and B4/2013/0202 
Neutral Citation Number: [2013] EWCA Civ 259

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(MR JUSTICE PETER JACKSON)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 5th February 2013

Before:

LORD JUSTICE WARD
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	In the matter of I (a child) 

-and-

in the matter of J (a child)	

			

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Mr T Gupta QC and Ms Katy Chokowry (instructed by Dawson Cornwell) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
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Judgment
Lord Justice Ward:

1.	These are two linked applications for permission to appeal orders made by Peter Jackson J.  In the case of J the position is that an unmarried mother of children placed the children with her parents, the grandparents.  They were given residence orders.  The unmarried father did not have parental responsibility before the removal of the children to America.  In the I case married parents resident in Nigeria placed the child, and for a short time a second child, with uncle and aunt in this jurisdiction but then removed the children back to Nigeria.  

2.	The issue which links both these applications is whether or not the court has jurisdiction.  The question is: whether the only people with parental responsibility (in the case of J the mother and the grandparents and in the case of I the parents) can remove the child from the jurisdiction even if the child is, at the point of removal, habitually resident here having lived separate lives in this country as part of the ordinary order of their living here?  The children had been placed here by the relevant parents with people to whom they entrusted care of the children.   They had established habitual residence here.  Can that be changed by those with parental responsibility summarily removing the children from the jurisdiction?

3.	It is not an easy question to answer.  There might be force, on one view of Balcombe LJ's judgment in the case of Re M (Minors) (Residence Order: Jurisdiction) [1993] 1 FLR 495, that there is some element of conflict between two important pins of Lord Brandon's analysis of habitual residence in the well known case of Re J (A Minor) (Abduction: Custody Rights) [1992] AC 562, where Lord Brandon observed that habitual residence is primarily a question of fact to be decided by reference to all the circumstances of the case but also, as a fourth proposition, that, where habitual residence of a young child is in question, the element of volition will usually be that of the person or persons who has or have parental responsibility for their child.  Where a young child is in the physical care of its mother and where, as here, she alone had parental responsibility for the child, then the child's situation with regard to habitual residence will necessarily be the same as hers.  And so the possible conflict highlighted by Lord Balcombe is what the position is when the young child has not been in the physical care of the mother who has parental responsibility but is, as a matter of fact, living with others to whom the mother entrusted the child.  Habitual residence, it is argued, should be determined by those with parental responsibility, and those with parental responsibility have the right to determine where the child shall live and have the right therefore to remove a child from the de facto care being exercised by others even with the consent of the parents.  The carers will not be able to complain of unlawful removal, will not be able to bring a Hague Convention case because they do not have rights of custody, those rights being solely possessed by the parents.

4.	The other strand of jurisprudence, increasingly troublesome, in this area is that which emanates from the European Court of Justice.  There we have the well-known case, well known by now at least, of Mercredi v Chaffe, which is in [2011] 2 FLR 515 in this jurisdiction, but as Case No. C-497/10 in the 2011 Volume 1 of the Family Law Reports at 1293.  The concept of habitual residence, as understood in Europe, is to be interpreted as corresponding to the place that reflected some degree of integration by the child in a social and family environment.  In Europe rights of custody do not seem to play the importance they may do in this jurisdiction.  It is all a jolly interesting little shambles and it seems to me therefore it is a pre-eminently kind of case which should be the subject of a decision of this court.  It seems to me most arguable that the right to determine where a child should be living, which is an incident of parental responsibility, should determine the question of habitual residence and override the de facto state of affairs which might exist before the removal of the child from the jurisdiction.  

5.	So Mr Gupta can have leave in both cases.  They should be linked and heard together and will last a day.  There is also a question of stay.  In the I case Baron J ordered the parents to return the children to the jurisdiction by paragraph 2 of her order of 30 October 2012.  Therefore there should be stay pending the outcome of the appeal.  In the J case HHJ Rumbelow made orders on the 9 August 2012 in paragraph 1 and 4 requiring the return of the child to the jurisdiction and requesting the co-operation of the American authorities.  Those paragraphs should also be stayed pending the outcome of the appeal. 

6.	The constitution should be three Lord Justices, can include a High Court judge. 

Order: Applications granted in both matters and stays