Supreme Court refuse permission on habitual residence case

On Friday 4th November 2011 the UK Supreme Court refused the father's application for permission to appeal against the decision of the Court of Appeal which concluded that the children were habitually resident in England. (Court of Appeal decision: Re H-K [2011] EWCA Civ 1100)
The Court of Appeal had concluded that Mrs Justice Hogg had wrongly applied the test to determine habitual residence by looking for a degree of permanence in the move which was not required. Ward LJ re-affirmed the importance of the House of Lords decision in Ex parte Shah.  He noted that the judgment of the Court of Justice of the European Union in Mercredi-v-Chaffe could be read as suggesting that the presence of the children in the country had to be permanent which was not so.  A temporary presence, provided it was voluntary and for settled purposes and for an appreciable period of time would be enough to create habitual residence and thus jurisdiction. Ward LJ resolved the apparent conflict between the CJEU and the HL by interpreting the CJEU judgment so as to remain consistent with the HL test in Ex parte Shah.

However it remains plain that
- there is a conflict between the language used by the CJEU and the House of Lords.
- there is some risk of different tests for habitual residence emerging depending on whether the countries concerned are BIIR signatories or not
- a family which moves for an extended holiday, a sabbatical or a time limited employment contract could very well lose the jurisdiction of the courts of the 'home' state.
- there is a significant divergence between different countries to the definition of habitual residence. Some (including some EU countries) would define it in terms closer to the English concept of domicile as would some states of the USA. There is no unanimity in terms of an automonous  meaning of habitual residence in respect of the 1980 Hague Convention


It is slightly surprising that the UKSC declined permission given the important points of principle of general public importance engaged. They also declined permission in the Mercredi-v-Chaffe case itself which was a BIIR case so it would seem that the UKSC would need a truly compelling case for habitual residence to be considered by that tribunal.