The habitual residence see-saw

Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4

The Supreme Court allowed the appeal of a parent against the Court of Appeal’s decision to uphold the High Court’s finding that the English court had no jurisdiction to determine her application for a shared residence or a contact order in respect of her child, B, because B had ceased to be habitually resident in England immediately she was removed to Pakistan by her other parent. The Supreme Court ruled that a child’s loss of its habitual residence was no longer to be determined on the basis of parental intention, as held in Re J (a minor) (abduction: custody rights), Re [1990] 2 All ER 961, but occurred when the child had disengaged sufficiently from the environment of that residence. Usually a child would not become sufficiently disengaged until they had integrated elsewhere and thus habitual residence would usually be lost at the same time another was gained. That had not occurred in the instant case by the time the parent in England had made her applications. The Supreme Court also confirmed that in cases where the court considered exercising the parens patriae jurisdiction on the basis of British nationality that the reasons why extreme circumspection was to be used was not because exceptionally serious welfare concerns had to be demonstrated but because in such cases there was a risk of a clash of jurisdiction and risks that any order made could not be enforced.