B v H (HABITUAL RESIDENCE: WARDSHIP)
[2002] 1 FLR 388
Family Division
Charles J
19 October 2001
Abduction – Habitual residence – Unilateral decision by one parent to remain abroad with children –
Child born abroad
The mother alleged that the father had been threatening and violent during the marriage; at one stage the mother
had obtained a non-molestation order against the father, later going into a refuge for 3 months. Following a
reconciliation, the mother, now pregnant, and the three children, all habitually resident in England, accompanied
the father to Bangladesh for what the mother believed would be a visit of 4–5 weeks. While on the visit the father
announced his intention to remain in Bangladesh, refused to hand over the passports of the mother and children,
and revealed that he had purchased single rather than return tickets to Bangladesh. Because the mother was
unable to leave the country, the fourth child was born in Bangladesh. Subsequently, after another violent incident,
which was reported to the police in Bangladesh, the mother left the father, eventually obtaining a divorce and her
passport, but not the children. The father retained control of the children and the mother returned to England
without them. The mother applied for the children to be made wards of court with care and control to her, and for
injunctive orders against the father requiring him to return the children to the jurisdiction. It was common ground
that the court did not have jurisdiction to make such orders in respect of a child who was not habitually resident
in England and Wales at the date of the originating summons.
Held – making wardship orders in respect of all four children and making injunctive orders against the father,
in personam, that he return the children to the jurisdiction –
(1) The three oldest children did not lose their habitual residence in England when the family left for
Bangladesh because, although the father may have intended to change their habitual residence, the trip had been
presented to the mother as a temporary visit, and one of two parents with joint parental responsibility could not
change the habitual residence of a child unilaterally. As, on the facts, the mother did not form an intention to live
permanently in Bangladesh after the family’s arrival there, or become resigned to that possibility, the children
did not subsequently lose their habitual residence in England (see paras [22], [88], [89], [90], [97]).
(2) The baby was and remained habitually resident in England even though she had never been to England. A
child could not acquire an habitual residence until he or she was born and became an independent being; at
birth the habitual residence of a baby was that of the people who had parental responsibility for the baby.
Although it was possible for individuals to have no habitual residence, a baby had an habitual residence if
its parents had an habitual residence. The mere fact that a baby was born abroad did not of itself found a
conclusion that the baby was not habitually resident in England; it was not the case that a baby could not
be habitually resident in England until he or she had physically been to England. The father’s unilateral
decision to remain in Bangladesh, albeit made and communicated before the birth, did not change the
baby’s habitual residence at birth, which remained that of the mother and the siblings. As with the siblings,
habitual residence in England had not been lost as a result of the extended stay in Bangladesh (see paras
[108], [114], [115], [142], [144], [150]).
Statutory provisions considered
Supreme Court Act 1981, s 37
Family Law Act 1986, ss 1, 2, 3
Children Act 1989, ss 8, 105(6)
Hague Convention on the Civil Aspects of International Child Abduction 1980
Cases referred to in judgment
A (Wardship: Jurisdiction), Re [1995] 1 FLR 767, FD
Akbarali v Brent London Borough Council; Abdullah v Shropshire County Council; Shabpar v Barnet
London Borough Council; Jitendra Shah v Barnet London Borough Council; Barnet London Borough
Council v Nilish Shah [1983] 2 AC 309, [1983] 2 WLR 16, [1983] 1 All ER 226, HL
Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951, CA
Attorney-General’s Reference (No 3 of 1994) [1998] AC 245, [1997] 3 WLR 421, [1997] 3 All ER 936,
HL
F (In Utero) (Wardship), Re [1988] Fam 122, [1988] 2 WLR 1288, [1988] 2 FLR 307, [1988] 2 All ER
193, FD and CA
H and Others (Minors) (Abduction: Acquiescence), In re [1998] AC 72, [1997] 2 WLR 563, [1997] 1
FLR 872, [1997] 2 All ER 225, HL
J (A Minor) (Abduction: Custody Rights), In re [1990] 2 AC 562, [1990] 3 WLR 492, sub nom C v S (A
Minor) (Abduction) [1990] 2 FLR 442, [1990] 2 All ER 961, HL
KR (Abduction: Forcible Removal by Parents), Re [1999] 2 FLR 542, [1999] 4 All ER 954, [1999] Fam
Law 545, FD
Kapur v Kapur [1984] FLR 920, [1985] Fam Law 22, FD
M (Abduction: Habitual Residence), Re [1996] 1 FLR 887, [1996] Fam Law 402, CA
M (Minors) (Residence Order: Jurisdiction), Re [1993] 1 FLR 495, [1993] Fam Law 285, CA
MB (Medical Treatment), Re [1997] 2 FLR 426, [1997] Fam Law 542, CA
N (Abduction: Habitual Residence), Re [2000] 2 FLR 899, FD
Nessa v Chief Adjudication Officer [1999] 1 WLR 1937, [1999] 2 FLR 1116, [1999] 4 All ER 677,
[2000] Fam Law 23, HL
P (GE) (An Infant), In re [1965] Ch 568, [1965] 2 WLR 1, [1964] 3 All ER 977, CA
R v Newham London Borough Council ex parte Dada [1996] QB 507, [1995] 3 WLR 540, [1995] 2 All
ER 522, [1995] Fam Law 410, CA
S (Adult: Refusal of Treatment), In re [1993] Fam 123, [1992] 3 WLR 806, [1992] 4 All ER 671, sub
nom Re S (Adult: Surgical Treatment) [1993] 1 FLR 26, FD
S (Minors) (Abduction: Wrongful Retention), Re [1994] Fam 70, [1994] 2 WLR 228, [1994] 1 FLR 82,
[1994] 1 All ER 237, FD
Wallersteiner v Moir; Moir v Wallersteiner and Others [1974] 1 WLR 991, [1974] 3 All ER 217, CA
Brian Jubb for the mother
Robin Barda for the defendant
CHARLES J:
Introduction
[1] These are wardship proceedings commenced by the mother of four children. The three oldest
children M, R and A were born on respectively, 11 December 1992, 7 December 1993 and 8 October
1998. They were all born in England.
[2] The youngest child, H, was conceived in England but born in Bangladesh on 21 November 1999.
H has never visited this country.
[3] The four children are all children of the marriage of the mother and the defendant to these
proceedings (the father).
[4] The mother is a Bangladeshi national who has indefinite leave to remain in this country. She is at
present living in England.
[5] The father is believed by the mother to be in Bangladesh. She also believes that all four children
are in Bangladesh but at present she does not know exactly where they are. The mother has had no
contact with any of the children since last year.
[6] The father and all four children have British passports.
[7] The originating summons was issued on 2 February 2001.
[8] The issues that are presently before me are whether this court has jurisdiction to make orders in
the wardship proceedings commenced by the mother and, if it does, what orders the court should
make.
The participation of the father in these proceedings
[9] I am satisfied that the father has been personally served in Bangladesh with the originating
summons, the affidavit of the mother sworn in support of it and orders made in these proceedings.
[10] The father has however taken no part in these proceedings.
[11] I add that although the evidence indicates, and I accept, that the father speaks good English and
has run a business in England the precaution was taken of serving on him translations of a number of
documents including the mother’s affidavit in support of the originating summons.
[12] In short I am satisfied that the father knows of these proceedings and of the allegations made in
them by the mother but has chosen to take no part in them either by writing a letter or otherwise.
[13] It follows that the father has had a proper opportunity to, but has chosen not to, dispute the
allegations being made by the mother, or advance his case before this court.
CAFCASS
[14] The Child and Family Court Advisory and Support Service (CAFCASS) has appeared through
counsel as a friend of the court. I am grateful for their assistance.
Jurisdiction
[15] Sections 1(1)(d), 2(3), and 3(1) of the Family Law Act 1986 are relevant and provide as
follows:
Subject to the following provisions of this section, in ‘1(1) this Part “Part 1 order” means—
…
(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; but
(ii)
excluding an order varying or revoking such an order.
…
[2002] 1 FLR 391
A court in England and Wales shall not have jurisdiction 2(3) to make a section 1(1)(d) order
unless—
(a)
(b)
the condition in section 3 of this Act is satisfied, or
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 referred to in section 2(2) of this Act is 3(1) that on the relevant date the child
concerned—
(a)
is habitually resident in England and Wales, or
(b)
…’
[16] The mother seeks a s 1(1)(d) order. Indeed the purpose of her application in wardship is to
obtain an order that she be given care of the four children in this country.
[17] The injunctive relief she seeks is to enable such orders to have effect. It is also in support of the
wardship.
[18] In my judgment it was correctly common ground that this court did not have jurisdiction to
make some of the orders sought in these proceedings in respect of each of the children unless that
child was habitually resident in England and Wales on 2 February 2001 (the date of issue of the
originating summons).
[19] I pause to add that if the mother had sought an order under s 8 of the Children Act 1989 (eg a
residence order) this court would only have had jurisdiction on the same basis (see ss 1(1)(a), 2(2) and
3 of the Family Law Act 1986).
[20] As is perhaps apparent from what I have already said (but will become more apparent from the
history I set out later) different issues on habitual residence arise in respect of the three older children
and the youngest child.
Habitual residence
[21] Black J has recently considered the issue of habitual residence in Re N (Abduction: Habitual
Residence) [2000] 2 FLR 899 in which she considers existing authority. At 905G–906B she says:
‘– “Habitual Residence” is not defined by the Hague Convention or by statute; the words are to
be understood according to their ordinary and natural meaning. It refers to a person’s abode in
a particular place or country which he has adopted voluntarily and for settled purposes as part
of the regular order of his life for the time being whether of short or of long duration.
–
The question of whether a person is or is not habitually resident in a specified country is a
question of fact to be decided by reference to all the circumstances of any particular case.
[2002] 1 FLR 392
–
Habitual residence can be lost in a single day if a person leaves a country with the settled
intention not to return but to take up long-term residence elsewhere instead.
– There is no fixed period of residence required in the new country before habitual residence
there can be established. What must be shown is residence for a period which shows that the
residence has become habitual and will or is likely to continue to be habitual.
–
A short period of residence may suffice in some cases and there may be special cases where
someone is resuming residence in a country where they were formerly habitually resident
rather than coming for the first time.’
I gratefully adopt that summary. Unsurprisingly it was accepted and adopted by counsel for the
mother and CAFCASS. Black J goes on at 906B–D to say:
‘It has been argued on behalf of the father in this case, in a submission that builds upon the
dissenting judgment of Thorpe LJ in the Court of Appeal in the Nessa case, that a family court may
need to be quicker to find habitual residence established than a court dealing with another area of the
law. This is necessary, it is said, because the protection of children (against international abduction in
particular) is increasingly based upon habitual residence, making it imperative that a child should
always be habitually resident somewhere. Because of my findings of fact, it has not been necessary for
me to decide upon this argument which, it is said, was left open by the House of Lords in Nessa v
Chief Adjudication Officer [1999] 2 FLR 1116, [1999] 1 WLR 1937.’
That argument was not developed before me and I have not based my conclusions on it.
[22] At 907F–909D Black J deals with the issue whether the habitual residence of the children had
changed on the basis that in that case the father had become habitually resident in Spain, whereas the
mother never ceased to be habitually resident in England (and certainly did not become habitually
resident in Spain). She starts that consideration by recognising that the earlier authorities have been to
the effect that one of two parents with joint parental responsibility cannot change the habitual
residence of their child unilaterally. At 908F–909C she says this:
‘It is argued on behalf of the mother in the light of these authorities that to change the children’s
existing habitual residence a common intention of both parties would be necessary and, the mother
never having lost her habitual residence in England or participated in the Spanish venture as anything
other than an experiment or exploratory period of attempted reconciliation, there was no such common
intention.
On behalf of the father, it is submitted that, faced with this conflict of habitual residences of the
parents, one should look at the objective evidence and ask the question: if the children were asked
where they
[2002] 1 FLR 393
live, what would they say? I do not consider that this is an answer, and particularly not where the
children are so very young as these.
Alternatively, it might be that the habitual residence of the children should follow that of the father
in such circumstances as would their domicile. As to this, I do not find it helpful to carry over
principles relating to domicile into a determination of the issue of habitual residence when the courts
have been quite clear that a different approach is to be taken when determining someone’s habitual
residence from that adopted when determining domicile.
In my view, it is important to recognise that what the father seeks to establish is that the children’s
place of habitual residence has changed. I have concluded that this cannot happen where he alone of
the parents with whom they are living has lost the habitual residence that he shared with the mother
and the children and become habitually resident elsewhere. It is argued on behalf of the father that the
mother’s endorsement of the move to Spain, albeit with reservations, should be taken as agreement to
or acquiescence in the children’s habitual residence changing to Spain once their father became
habitually resident there. I do not consider that the conditional enterprise undertaken by this mother
had this effect, and in particular not where the father had been told expressly about the conditional
nature of the move, where the marriage had not improved whilst the parties were in Spain, and in the
light of the paucity and lateness of arrangements made in Spain for the family and the period over
which the stay in Spain lasted.
Accordingly, I have concluded that the children did not lose their habitual residence in England or
become habitually resident in Spain at any time before they left that country with their mother on
15 February 2000.’
The evidence
[23] As I have already mentioned the father has taken no part in these proceedings.
[24] I have before me an affidavit sworn by the mother in support of the originating summons and
some statements made by her in support of proceedings brought by her under the Family Law Act
1996 for non-molestation orders. I also heard some oral evidence from the mother. That evidence was
given with the assistance of an interpreter.
[25] As a result of the decision of the father not to take part in these proceedings the mother’s
evidence could not be challenged in cross-examination by a representative of someone with personal
knowledge of the allegations she has made and the history she has given.
[26] The focus of the mother’s oral evidence was on the period from about August 1999 until May
2000. The reason for this was that it was in my judgment correctly common ground that if the three
oldest children had lost their habitual residence in England and Wales by reason of the intentions and
actions of their parents they did so during this period.
[27] In my judgment counsel for CAFCASS was right to stress the need for careful examination by
the court of the mother’s evidence and in particular her evidence in respect of that period.
[2002] 1 FLR 394
[28] This is because orders of the type sought by the mother should not be lightly made and therefore
the evidence in support of them should be closely examined and appropriately tested.
The history up to June 1999 as recounted by the mother
[29] The father was born in 1960. The mother was born in 1972. They entered into an arranged
marriage in Bangladesh in June 1991.
[30] In September 1991 the father travelled to England. He is a British citizen and has dual
nationality. The mother came to England in March 1992.
[31] Their oldest child, M, was born in December 1992 and, in February 1993, the mother was
granted indefinite leave to stay in the UK. Their second child, R, was born in 1993. Sadly another
child who was born in 1997 died shortly after birth. A was born in 1998.
[32] Between 1992 and 1998 the family had established their home in England and, in my judgment
correctly, it was common ground before me that in 1999 the father, the mother and the three oldest
children were all habitually resident in England.
[33] During the period from 1992 to 1998 the family made two visits to Bangladesh to see the
families of the father and the mother. These were intended to be, and were, temporary visits.
[34] Also during that period there were problems and difficulties in the marriage. The mother says
that the father has been violent to her during the marriage. In November 1993 the mother obtained a
non-molestation order against the father and separated from him. After about 3 months they
reconciled.
[35] During this separation the mother (and the two children who had by then been born, M and R)
lived with her uncle and his wife in England.
[36] After the reconciliation the mother says the father did not cease being violent towards her as he
had promised. Rather she says the violence became worse. She makes serious allegations including
that she was threatened with a knife on some five occasions.
[37] In December 1996 the mother left the father and went into a refuge for about 3 months with M
and R. The mother and father reconciled again in February 1997 when the mother was 6 months
pregnant with the child who sadly died shortly after his birth.
[38] Both parents were naturally very upset at the death of this child and although there was no
return to the earlier violence at this stage the relationship between the parents deteriorated in other
ways.
[39] The father was keen to have another child but the mother was reluctant to do so. The mother
says that the father was insistent and she felt compelled to comply with his wish to have another child.
As I have said A was born in October 1998.
[40] In early 1999 the mother became pregnant with H. This was an unplanned pregnancy.
[41] When the mother was 2 months pregnant with H the father told her he was contemplating a trip
to Bangladesh. The mother did not want to go because of the pregnancy. This disagreement resulted in
a violent incident. A little after that the father told the mother that he had bought the tickets and that as
his wife she had to obey him and that she and the children had to go
[2002] 1 FLR 395
with him to Bangladesh. On this occasion the wife says that the father threatened her with a knife.
[42] Around this time the father told the mother that he had sold his business in England. The reason
he gave for this was that he had done so to enable him to pay the fares. However the mother says that
he also told her that they would only be in Bangladesh for about 4–5 weeks and that they would all
return to England. That would have enabled the mother to return to England in good time before the
birth of H.
[43] The mother says that she felt compelled to go to Bangladesh. Further, she says that when the
family left for Bangladesh she thought that they were going for a visit of about 4–5 weeks and that
they would all then be returning to England.
[44] Whether she would have felt compelled to go and thus would have gone if she had thought they
would not be returning to England is a matter of speculation.
[45] Having regard to the mother’s oral evidence and the lack of any challenge to her evidence by the
father I accept her general account of the history as I have set it out above.
[46] I therefore accept and find that the mother did not voluntarily, or as a matter of duty or
compulsion (with or without threats of violence), or to keep the family together agree to leave England
and live in Bangladesh either (a) with the father and the children, or (b) with the children on the basis
that the father would be returning to England as and when he thought fit.
The mother’s account of the time in Bangladesh
[47] After the family had been in Bangladesh for about 4 weeks the mother says that the father told
her that he would not be returning her and the children to England. This was the first time that the
mother was told this.
[48] As a result the mother looked for the passports of herself and the children. She did not find them
and when she asked the father where they were he replied that she would not be able to find them and
then showed her the tickets he had bought. They were single tickets for herself and the children but a
return ticket for him. This was in July.
[49] It follows that the mother was then in a very difficult position. She and the children had no
return tickets or money to buy any. Also she did not have access to their passports. Further at that time
she was living with the father’s family who were supportive of him. Additionally she was pregnant
and would not be able to fly from about September 1999.
[50] The mother went to see her own family who live in a village some 7–8 miles from the father’s
village. The mother’s father told her to go back and ask for the passports and that he and his family
would try and find the money for the tickets so that the mother and the children could return to
England. The mother then returned to the father’s village with a brother but the father refused to hand
over the passports.
[51] The mother says that she then felt trapped, powerless and frightened. She remained with the
children at the home of the father’s family.
[52] In September 1999, without explanation the father left and shortly afterwards telephoned the
mother saying that he was in England. He refused to say why he was in England but told the mother
that he would be back before H was born. The father returned about 6–8 weeks later.
[2002] 1 FLR 396
[53] After the father’s return (and about 2 weeks before H was born) the father moved the mother,
the three oldest children and his mother (the paternal grandmother) into a house in his village which
had been built or improved during 1999. The house was reasonably comfortable.
[54] H was born on 21 November 1999 and in December 1999 the father returned to England for
about 6–8 weeks. During this visit he telephoned the mother telling her to come to England with the
three oldest children but to leave H with his mother (ie the paternal grandmother). The father said that
his brother would make all the necessary arrangements.
[55] The mother asked why it was necessary to leave H and was told by the father that this was
because H did not have a visa. The mother’s response was that she did not feel able to leave H who
she was then breast-feeding.
[56] This telephone conversation ended with the father swearing at the mother. He returned to
Bangladesh about 1 week later.
[57] During his period in England the father made withdrawals on the mother’s credit card and she
believes that he was claiming income support and child benefit in her name.
[58] Whilst the father was away in England and as I understand it in January or early February 2000,
the mother applied to the British High Commission in Dacca for a passport for H.
[59] On 24 May 2000 the mother and the father collected the passport and the father took possession
of it.
[60] On 27 May 2000 matters came to a head after the mother suggested to the father that now they
had a passport for H they should all return to England.
[61] The father’s response was that the mother could go with three of the children but one child had
to remain in Bangladesh. The father also said that the mother’s father would have to pay for the
tickets.
[62] This led to an argument in which the father became violent. The mother says that if she had not
fled the father would have killed her because he had gone berserk.
[63] The mother says she escaped by running out of the back door and climbing a wall. She found a
taxi which took her to her brother’s place of work although she had no money to pay the fare.
[64] The mother says that she was admitted to a clinic. She also made a statement to the police in
Bangladesh about this incident.
[65] I pause to comment that the police report and the report that the mother’s advisers have obtained
from the clinic do not confirm her account as to the extent of her injuries. As to that she does not
assert that any bones were broken but alleged in her affidavit that she suffered extensive bruising and
swellings. There is no reference to either in the reports.
[66] Thereafter the mother took steps through the police, village elders and some proceedings in
Bangladesh to try to recover the children. These were all unsuccessful. As I understand it at this time
she was living with her own family in Bangladesh and the complaint she made in the proceedings
against the father was one in which she alleged torture.
[67] She says that at the first meeting of the elders there was no discussion about any form of divorce
and indeed that the father said that he wanted her to return to him and that he would not behave
violently again. The mother says that she could not believe him, refused to go back and asserted that
she wanted the children. The father refused to give the children back. The elders
[2002] 1 FLR 397
suggested that at least he should return H. However the father refused. He also refused to return the
mother’s passport.
[68] At later meetings the mother says that the father said that if he was forced to return the children
to her he would kill both himself and the children.
[69] The mother says that she was advised that she would not be successful in proceedings in
Bangladesh to secure the return of the children and she therefore decided to return to England as and
when she could to seek relief here.
[70] To enable her to return she had to get her passport and she sought the assistance of the
authorities in Bangladesh to do this.
[71] After she had done this the father said that he would return her passport to her if she agreed to a
divorce. The mother says that he also proposed that she should sign some papers which she refused to
do because she believed that they said that she consented to the children living with the father.
[72] So far as the mother is aware she entered into no agreement concerning the children and no
orders in Bangladesh have been made in respect of the children.
[73] After further discussion with the village elders a divorce was concluded on 30 October 2000 and
the Talaq was pronounced in the mother’s presence on the same day. A translation of the documents
relating to the divorce is exhibited to the mother’s affidavit.
[74] Following the divorce the father returned the mother’s passport to her and she returned to the
UK on 5 November 2000.
[75] Thereafter the mother had some problems over the issue of a funding certificate for these
proceedings which caused delay.
My conclusions on the mother’s account of the history
[76] The fact that the reports that the mother has produced from the police and the clinic she visited
after she says she was attacked by the father in Bangladesh do not support her account of the extent of
her injuries gives rise to an argument that either she was not attacked as she alleges, or that she has
exaggerated the violence of the father towards her and the extent of her injuries. A ‘knock-on’
argument is that she has not given a truthful account of the history.
[77] Having seen the mother give her oral evidence and having regard to her written evidence as a
whole and the lack of challenge to it by the father I do not accept that ‘knock-on’ argument.
[78] I accept that the mother may have exaggerated the extent of her injuries at the end of May 2000.
However the reports she has produced support the assertion that at the end of May 2000 she was
asserting that she had been attacked and that this had precipitated her leaving the father’s house.
[79] Also I accept that in other areas of her account the mother may have exaggerated some matters
or been partisan in recounting them. However, generally, I accept her account of the history. In
particular I accept the points I have made earlier as to the basis upon which she went to Bangladesh in
June 1999 and that:
[2002] 1 FLR 398
(a) The first time she was told by the father that she and the children would not be returned by
him to England, and that he had not bought them return tickets, was when they had been in
Bangladesh for about a month.
(b) Accordingly it was only after she had been in Bangladesh for a month that the mother knew for
the first time that she and the children would not be returned to England, or that there were
difficulties about that return, even if she had suspected that this might be a problem before
then.
(c) When the mother was told by the father that he would not be returning her and the children to
England she was in a very difficult position and felt trapped, powerless and frightened. Further
she was unable to obtain effective help from her family in Bangladesh. Her pregnancy made
matters more difficult and she did not have access to her passport or the passports of the
children.
(d)
The mother applied for a British passport for H to enable H to travel to England without any
immigration difficulties, or difficulties about her remaining in England.
(e) As the mother confirmed to me in her oral evidence she wanted to try and keep the family
together so that the children would grow up with both their parents but when she was asked she
said, and I accept, that if she had been given the opportunity before May 2000 of returning to
England with the children but without the father she would have taken it.
(f) The mother never decided, or concluded, or accepted that her home and the home of the
children would be Bangladesh. Her consistent wish and intention was to return to England with
the children and live here with them. Until May 2000 she would have preferred to have done so
with the father but, as I have said, if she had been given the opportunity she would have done so
without him.
(g)
Part of the mother’s plan to effect her return with the children to England was her
application for a passport for H.
(h)
After May 2000 the mother had separated from the father and her wish was to return to
England with all four children.
[80] Additionally I find that on the evidence before me the position of the father between June 1999
and May 2000 is equivocal. Initially he told the mother that they were going to Bangladesh for a
temporary visit. After that he initially said that he would not return the mother and the children to the
UK but he then returned himself. He also made statements to the mother indicating that she could
return to England with three of the children. In my view these statements are indications of a wish to
control the mother rather than a settled intention of the father that the family home, or the home of the
mother and the children, should be Bangladesh.
[81] As to the father’s position after May 2000 there is little or no evidence before me in respect of
his intentions concerning a return to England and where his home was and would be. Also I do not
know if he has visited England since May 2000. The mother believes that he has
[2002] 1 FLR 399
remarried. There is at least a possibility that his intention is to return to England to live here.
The habitual residence of the three oldest children
[82] The essential issue is whether they have lost their habitual residence in the UK which they all
had through their parents in 1999 rather than whether they have acquired an habitual residence in
Bangladesh.
[83] In argument before me, in my judgment:
(a) it was correctly accepted and asserted that all three children were too young to acquire an
habitual residence themselves through their own actions and intentions (see for example In re J
(A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, sub nom C v S (A Minor) (Abduction)
[1990] 2 FLR 442, at 579A and 454 respectively, Re S (Minors) (Abduction: Wrongful
Retention) [1994] Fam 70, [1994] 1 FLR 82, at 82A–C and 94 respectively, and Re M
(Abduction: Habitual Residence) [1996] 1 FLR 887, 896B and Re N (Abduction: Habitual
Residence) [2000] 2 FLR 899, 907F–909D (cited earlier)); and
(b)
counsel for CAFCASS properly invited me to consider whether the children had lost their
habitual residence in England either:
(i)
when they left England in June 1999 and travelled to Bangladesh, or
(ii) after their arrival in Bangladesh and in particular during the period between July 1999 (ie
from the end of the projected 4–5 week stay) and May 2000 (when the parents
separated).
The arguments in favour of a conclusion that the children had lost their habitual residence in England
are based on the basis or hypothesis that at the relevant times (ie June 1999 or sometime thereafter and
before May 2000) the father either (i) lost his habitual residence in England and probably became
habitually resident in Bangladesh, or (ii) decided that the wife and children should live permanently in
Bangladesh and therefore that they should have their habitual residence there.
[84] On this basis or hypothesis the issue I was invited to consider was whether the mother had
agreed to, or acquiesced in, that state of affairs with the result that the children lost their habitual
residence in England and probably became habitually resident in Bangladesh.
[85] As to acquiescence I was in my judgment correctly referred to In re H and Others (Minors)
(Abduction: Acquiescence) [1998] AC 72, [1997] 1 FLR 872, in particular at 87C–90B and 881E–
884C respectively. In that case the House of Lords was considering whether a wronged parent had in
fact gone along with a wrongful abduction. I accept that the same approach should be adopted in
deciding the issue whether in this case the mother has gone along with a change of habitual residence
of the children of the marriage for whom both she and the father have parental responsibility.
[86] In considering this question I shall first do so on the assumption that the underlying basis or
hypothesis referred to above is correct and therefore that the father had the relevant intention to
change the habitual residence of
[2002] 1 FLR 400
the children either on the basis that (i) he and his family would live in Bangladesh, or (ii) his wife and
children would live in Bangladesh.
[87] On this assumption in my judgment on the findings of fact I have made and set out above the
mother never agreed to, or acquiesced in, any such change.
[88] As I have said in my judgment when the family left England in June 1999 the mother did not
voluntarily, or as a matter of duty, or compulsion (with or without threats of violence), or to keep the
family together agree to go and live in Bangladesh with the father and the children, or with the
children. In my judgment her agreement and intention was that the visit to Bangladesh should be a
temporary one for 4–5 weeks and then she and the children (together with the father) would return
home to England.
[89] Accordingly, in my judgment, the three oldest children did not lose their habitual residence in
England in June 1999 when the family left for Bangladesh.
[90] Thereafter, in my judgment, the mother never formed an intention, or became resigned, or
committed to the fact that she and the children would, or would have to, live in Bangladesh. In my
judgment her intention and aim was that she and the children should return to England and that
England should be their home.
[91] This conclusion flows from my findings in respect of the history as recounted by the mother.
[92] Additionally in my judgment the mother did not conduct herself in a way which had the result
that vis-à-vis the father she cannot now assert that she did not agree to the children remaining in
Bangladesh and having their home there.
[93] Again, in my judgment, this flows from the findings I have made in respect of the history as
recounted by the mother.
[94] I add that, in my judgment correctly, it was not argued before me that the children lost their
habitual residence in England after May 2000 as a result of the divorce of their parents in Bangladesh
or otherwise. In my judgment from May 2000 the mother was, and has been, consistently attempting
to secure the return of the children to England so that she and they can have their home here.
[95] Further, and in any event, I add that in my judgment the underlying assumption that I have made
in respect of the above issues relating to the position and intention of the father that the children
should have their home in Bangladesh is not established on the evidence. As to this albeit that the
father told the mother that he was not going to return her and the children to England thereafter he
returned on two occasions and made two proposals for the return of the mother and three of the
children (leaving one behind in Bangladesh) to England. In my judgment this does not demonstrate
that over the relevant period (ie up to May 2000) the father had formed a settled intention that the
children should live in Bangladesh.
[96] As I have already mentioned I have little or no evidence as to the father’s intentions after May
2000 as to where his home was and would be.
Conclusion as to the habitual residence of the three oldest children
[97] In my judgment the three oldest children have not lost their habitual residence in England.
[2002] 1 FLR 401
The habitual residence of the youngest child H
[98] If H had been born before the family left England in June 1999 she would be in the same
position as the other children.
[99] In fact when the family left the mother was pregnant with H.
[100] H has never been in England and the mother believes that she is still in Bangladesh.
[101] I was not referred to and have not found a case concerning such a situation.
[102] First I shall deal with the point generally and then return to this case.
Generally
[103] By way of introduction I comment that I am not dealing with a case where either (a) the father
did not have parental responsibility, or (b) the mother changed her habitual residence during her
pregnancy. Cases in which only the mother has parental responsibility and it is her habitual residence
that determines that of the child have a different starting point to cases where both parents have
parental responsibility.
[104] In any event as appears earlier in this judgment in my view in this case the mother has not lost
her habitual residence in England. I note and accept problems exist as to how a father of an unborn
child who will not have parental responsibility on birth can protect his ability to make applications in
respect of the child in the English courts, or under the Hague Convention on the Civil Aspects of
International Child Abduction 1980, during the pregnancy.
[105] Also, and in my judgment importantly when the authorities are considered and applied, I am
concerned initially with the issue of what the habitual residence (if any) of a child is at birth and not
with a subsequent loss or change of habitual residence.
[106] In my judgment starting points to that initial issue are that:
(a) like the habitual residence of infants the habitual residence of a newborn baby is determined by
the position of the parents who have parental responsibility for him and care and control of him
(see again for example In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, sub
nom C v S (A Minor) (Abduction) [1990] 2 FLR 442, at 579A and 454 respectively, Re S
(Minors) (Abduction: Wrongful Retention) [1994] Fam 70, [1994] 1 FLR 82, at 82A–C and 94
respectively, and Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, 896B and Re N
(Abduction: Habitual Residence) [2000] 2 FLR 899, 907F–909D (cited earlier); and
(b) the point made by Lord Brandon of Oakbrook in In re J (A Minor) (Abduction: Custody Rights)
[1990] 2 AC 562, sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442, at 578H–579A and
454 respectively (and approved in Nessa v Chief Adjudication Officer [1999] 1 WLR 1937,
[1999] 2 FLR 1116) that on a change of habitual residence a person does not acquire habitual
residence in a new country in a day and this requires an appreciable period of time and a settled
intention does not apply because (i) the situation is not one of change from one habitual
residence to another, (ii) Lord Brandon of Oakbrook was not
[2002] 1 FLR 402
dealing with a newborn baby and made it clear that habitual residence was a question of fact to be
decided by reference to all the circumstances of a case, and (iii) Lord Brandon of Oakbrook
accepts that in the case of an infant in the sole lawful custody of his mother his situation is the
same as the mother’s or the parents’ with parental responsibility if and because, as explained by
Balcombe LJ in Re M (Minors) (Residence Order: Jurisdiction) [1993] 1 FLR 495, 500 the baby
lives with her or them (and Lord Brandon of Oakbrook and Balcombe LJ were not considering the
position of a child living with a parent who is temporarily away from home).
As to points (a) and (b) in my judgment both counsel before me correctly accepted that a newborn
baby who is born in England to a married couple whose habitual residence is in England has an
habitual residence in England on birth. Thus if this family had not travelled to Bangladesh until after
H had been born she would have had an habitual residence in England in common with her parents
and siblings from the moment she was born in England.
[107] In my judgment points (a) and (b) and that acceptance by counsel reflect the first points based
on earlier authority (including Re M (Abduction: Habitual Residence) [1996] 1 FLR 887) in the
summary of Black J in Re N (Abduction: Habitual Residence) [2000] 2 FLR 899, 905G that:
‘– “Habitual Residence” is not defined by the Hague Convention or by statute; the words are to
be understood according to their ordinary and natural meaning. It refers to a person’s abode in
a particular place or country which he has adopted voluntarily and for settled purposes as part
of the regular order of his life for the time being whether of short or of long duration.
–
The question of whether a person is or is not habitually resident in a specified country is a
question of fact to be decided by reference to all the circumstances of any particular case.’
(See also Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951, para (23).)
[108] In my judgment in the case of an infant child and a fortiori a new born baby his (or her) abode
(or I would say alternatively home) which has been adopted for him (or her) voluntarily and for settled
purposes is as a matter of fact that of his (or her) parents who have parental responsibility for the child
and with whom he (or she) will live when, for example, the child leaves hospital in England and
returns home in England.
[109] It is the settled intentions of the parents that render that ‘residence’ of the baby habitual.
[110] That approach provides what I would suggest is an obvious and sensible result particularly in
cases where habitual residence is a trigger to jurisdiction when a child is born in the country of his or
her parents’ (and infant siblings’) habitual residence. It seems to me that it also derives some support
from s 105(6) of the Children Act 1989 which is concerned with
[2002] 1 FLR 403
‘ordinary residence’ and excludes periods during which a child lives in an institution or school and
thus concentrates on the child’s home.
[111] I also note that this approach and conclusion accords with the passage from the judgment of
Hoffmann LJ in Re M (Minors) (Residence Order: Jurisdiction) [1993] 1 FLR 495 which is cited by
Sir John Balcombe in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, 891G–892A). As
Sir John Balcombe points out in that passage Hoffmann LJ was not agreeing with the majority in the
Court of Appeal but that the difference between him and the majority was as to the mother’s change of
mind. In my view the relevance of the passage in the judgment of Hoffmann LJ is that it makes the
point (which Sir John Balcombe does not differ from and which in my judgment follows the earlier
authority in respect of children who do not have the independence to determine their habitual
residence by their own intentions and actions) that the habitual residence of the child is in the mother’s
(or in the case of a married couple in my judgment the parents’) settled home.
[112] Does it make a difference if the baby is born in a hospital abroad whilst the parents are on a
temporary visit abroad? To my mind as a matter of fact and common sense by itself it does not albeit
that it may be a relevant factor in determining whether the baby is habitually resident in England,
elsewhere or anywhere.
[113] It seems to me that many examples can be given when the fact that a baby is born abroad
should not make a difference. One example would be an unexpectedly early birth to a married couple
who are habitually resident in England during a weekend break in France. In such circumstances I ask
rhetorically why should the baby not be habitually resident in England at birth rather than at the
moment, or some time after, he or she is brought back to England? Given that habitual residence is not
defined and is an issue of fact to be determined in all the circumstances of the case by reference to the
intentions and actions of the parents to my mind the answer to that question is that there is no
compelling reason why the baby should not be habitually resident in England on birth.
[114] It follows that in my judgment the fact that the baby is born abroad does not of itself found the
conclusion that he (or she) is not habitually resident in England. Put another way, in my judgment if
the issue is considered as a matter of fact, it is not the case that a baby cannot be habitually resident in
England until he or she has, is (or has been) physically present here.
[115] In reaching that conclusion I accept that the cases dealing with the loss of habitual residence
and the acquisition of a new one show that a person can have no habitual residence. But in my
judgment different considerations apply on the birth of a baby with the result that if at the birth of the
child the relevant parent or parents have an habitual residence that is the habitual residence of the
child.
[116] However I agree with counsel for CAFCASS that it can be argued that two Court of Appeal
decisions indicate that the fact that a baby of a married couple whose habitual residence is England is
born abroad means that the baby cannot be habitually resident in England until he or she is brought to
England and starts to live here and thus, until that occurs, the baby either has no habitual residence or
(and perhaps less likely) is habitually resident abroad.
[2002] 1 FLR 404
[117] Those cases are Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 and Al Habtoor v
Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951. At paras (39)–(42) of the judgment of
Thorpe LJ in the Al Habtoor case he cites with approval the crucial passages from the earlier case on
which this argument is based. Thorpe LJ says this:
I turn then to Mr Swift’s alternative submission that ‘(39) the court had jurisdiction on 10 February
2000 since the mother and Neil were clearly habitually resident within the jurisdiction on that date and
Tariq’s habitual residence must necessarily be dependent upon theirs. Since Tariq was incapable of
independent volition his habitual residence is determined by the united volition of his two legal
parents. Were that submission good in law it would produce a highly artificial result. However in my
opinion it is clearly wrong in law. A similar submission was rejected in the case of Re M (Minors)
(Residence Order: Jurisdiction) [1993] 1 FLR 495 in the judgment of Balcombe LJ at 500 when he
said:
“The judge appeared to accept a submission on behalf of the mother, based on the passage from Lord
Brandon’s speech in Re J which I have cited above, that in the present case the children’s habitual
residence remained throughout in England and Wales, because the mother remained habitually
resident in Oxford, and that their habitual residence necessarily followed that of the mother, who alone
had parental responsibility for them. This appears to me to be a misinterpretation of Lord Brandon’s
fourth point. Where he refers to the child being in the ‘sole lawful custody’ of the mother he was
clearly using custody in the sense of physical possession or care, as was the fact in that case. I do not
read his words as intending to suggest that the habitual residence of a child is necessarily the same as
that of the parent who alone has parental responsibility, notwithstanding that the child may have been
living apart from that parent for a period which may have lasted for several years. That would be
inconsistent with his second point that habitual residence is a question of fact. All he was saying was
that where a young child is in the physical care of a mother who alone has parental responsibility for
the child, then normally the child’s habitual residence will be the same as hers, since it is her will that
determines the element of volition involved in the concept of habitual residence.”
Three years later in another (40) Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, Sir
John Balcombe very clearly rejected a submission similar to that advanced by Mr Swift in the present
appeal when he said at 895:
“… Bracewell J in the course of her judgment set out a series of propositions which she said were
based on Re M and Re A. I do not propose to repeat them here because I believe that the fundamental
fallacy in both of them and in that part of Hale J’s reasoning in Re A, to which I have already referred,
is that they treat habitual residence as a legal concept – somewhat
[2002] 1 FLR 405
akin to domicil – whereas we have the authority of the House of Lords in Re J, by which we and they
are bound, that is a question of fact.
Before a person, whether a child or an adult, can be said to be habitually resident in a country, it is
clear that he must be resident in that country. Of course, residence does not necessarily require
physical presence at all times. Temporary absence on holiday, or for educational purposes (as in Re A),
will not bring to an end habitual residence. But here the judge found as a fact, and on ample evidence,
that K became habitually resident in India. He has never to this day come back to England. As a
matter of fact, he has not been resident in England since he went to India in February 1994.
Bracewell J held that the mother’s change of mind both brought to an end K’s habitual residence in
India and gave him an habitual residence in England.
I have the gravest doubts whether the first proposition is correct. Clearly, the mother’s change of
mind could not alter the fact that he was, and is, physically resident in India. Whether her change of
mind could alone alter the ‘habitual’ nature of that residence I very much doubt, but in any event it is
not necessary finally to decide that point on this appeal, since the one thing about which I am quite
clear is that the child’s residence in India could not become a residence in England and Wales without
his ever having returned to this country. As I said before, the idea that a child’s residence can be
changed without his ever leaving the country where he is resident is to abandon the factual basis of
‘habitual residence’ and to clothe it with some metaphysical or abstract basis more appropriate to a
legal concept such as domicil.”
In a very clear second judgment, Millett LJ reasoned the (41) same conclusion having first stated
two principles of particular application to Mr Swift’s submission. They are (at 895–896):
The question whether a person is or is not “(1) habitually resident in a particular country is a question
of fact: Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 578 sub nom C v S (A Minor)
(Abduction) [1990] 2 FLR 442, 454 per Lord Brandon. The concept of habitual residence is not an
artificial legal construct.
While it is not necessary for a person to remain (2) continuously present in a particular country in
order for him to retain residence there, it is not possible for a person to acquire residence in one
country while remaining throughout physically present in another.”
I therefore reject Mr Swift’s attempt to establish (42) jurisdiction by dependency and turn to his
final submission to the effect that, whatever may be the restrictions introduced by the Family Law Act
1986, the court retained an inherent jurisdiction, derived from the fact that Tariq is a British national,
at least to grant the declaration that
[2002] 1 FLR 406
Tariq was and is unlawfully detained within the United Arab Emirates.’
[118] In addition it can be said that these passages are in line with (or are supported by) the point
made by Lord Brandon of Oakbrook in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC
562, sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442, at 578H–579A and 454 respectively
(and approved in Nessa v Chief Adjudication Officer [1999] 1 WLR 1937, [1999] 2 FLR 1116) that on
a change of habitual residence a person does not acquire habitual residence in a new country in a day
and this requires an appreciable period of time and a settled intention.
[119] Both cases in the Court of Appeal (and In re J (A Minor) (Abduction: Custody Rights) [1990] 2
AC 562, sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442 and Nesssa v Chief Adjudication
Officer [1999] 1 WLR 1937, [1999] 2 FLR 1116) were not dealing with the habitual residence of a
newborn baby who is born in the country that is not the habitual residence of his parents.
[120] In the Al Habtoor case the Court of Appeal concluded that the family had surrendered their
habitual residence in this jurisdiction when they departed for Dubai and that was the decisive
conclusion (see paras (31) and (32)).
[121] The passage I have cited earlier from the judgment of Thorpe LJ is not dealing with that point
(ie the surrender of habitual residence in England) or with the question whether the family and thus
the child acquired an habitual residence in Dubai. The point that is the subject of those paragraphs
(and thus the references to Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 is set out at the
beginning of para (39) of the judgment. It was similar to the point taken in Re M (Abduction: Habitual
Residence) [1996] 1 FLR 887 and was that as the boy’s habitual residence must necessarily be
dependent on that of the relevant parents the return of the mother and her husband to England had the
consequence that the child (the mother’s son) was also habitually resident in England notwithstanding
that he had been left in Dubai.
[122] It seems to me that this point can be described as a legal point rather than one based on the
facts of that case and is thus similar to the point that was rejected by the Court of Appeal in Re M
(Abduction: Habitual Residence) [1996] 1 FLR 887.
[123] In my judgment, for present purposes the passages in Re M (Abduction: Habitual Residence)
[1996] 1 FLR 887 cited by Thorpe LJ should be read in their context and thus in the context of the
facts of the case and the point under consideration. Briefly the facts of that case were that the child
had been living in India with his paternal grandparents for some time pursuant to an agreement
between the parents that he should spend his childhood there. After the child had been in India for
over a year the mother changed her mind and brought wardship proceedings.
[124] At 890C–891A Sir John Balcombe refers to an earlier decision of his (Re M (Minors)
(Residence Order: Jurisdiction) [1993] 1 FLR 495) and cites from it in the following terms:
[2002] 1 FLR 407
‘“There is no statutory definition of habitual residence. However the following propositions may be
deduced from the authorities:
(1) ‘Habitual’ or ‘ordinary’ residence refers to a person’s abode in a particular place or country
which he has adopted voluntarily and for settled purposes as part of the regular order of his
life for the time being, whether of short or long duration – per Lord Scarman in R v Barnet
London Borough Council ex parte Shah [1983] 2 AC 309 at p 343; Kapur v Kapur [1984]
FLR 920 at p 926
(2) Habitual residence is primarily a question of fact to be decided by reference to all the
circumstances of any particular case – Re J (A Minor) (Abduction: Custody Rights) [1990] 2
AC 562 at p 578, sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442 at p 454 …”
That is a passage from the speech of Lord Brandon of Oakbrook whose speech was approved by
all the other Law Lords sitting in that case:
“(3)‘… there is a significant difference between a person ceasing to be habitually resident in country
A, and his subsequently becoming habitually resident in country B. A person may cease to be
habitually resident in country A in a single day if he or she leaves it with a settled intention not to
return to it but to take up long-term residence in country B instead. Such a person cannot, however,
become habitually resident in country B in a single day. An appreciable period of time and a settled
intention will be necessary to enable him or her to become so. During that appreciable period of time
the person will have ceased to be habitually resident in country A but not yet have become habitually
resident in country B’…”
That again is from Lord Brandon of Oakbrook in Re J, at [1990] 2 AC 562, 578–579 and [1990] 2
FLR 442, 454C–D.
Where the habitual residence of a young child is in “(4) question, the element of volition will usually
be that of the persons or persons who has or have parental responsibility for that child. Where a young
child is in the physical care of its mother and where, as here, she alone has parental responsibility for
the child, then the child’s situation with regard to habitual residence will necessarily be the same as
hers …”
I followed with a further quotation from Lord Brandon of Oakbrook in Re J (A Minor) (Abduction:
Custody Rights) [1990] 2 AC 562, 579, sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442, 454:
[2002] 1 FLR 408
“The fourth point is that, where a child of J’s age is in the sole lawful custody of the mother, his
situation with regard to habitual residence will necessarily be the same as hers.”’
There follows the passage cited in para (41) of the judgment of Thorpe LJ in Al Habtoor v
Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951.
[125] Sir John Balcombe goes on to deal with further authority and then at 894H–895G he says:
‘In the course of argument in this case the example was put of a child who was born in India and
spent the whole of his or her life there with grandparents, while the parents come to this country and
acquire habitual residence in England. It was argued by Miss Scriven QC, on behalf of the mother in
this case, and indeed supported by Miss Hughes QC for the Official Solicitor that, in reliance on
Hale J’s decision in Re A, such a child has acquired an habitual residence in England so as to give the
English courts jurisdiction.
Indeed Miss Scriven put her proposition of law in the following words, as I took them down:
“A child’s habitual residence is that of the parents unless they agree that it shall have some other
habitual residence and so long as that agreement continues.”
I can see no basis for that submission either of law or of policy. Bracewell J in the course of her
judgment set out a series of propositions which she said were based on Re M and Re A. I do not
propose to repeat them here because I believe that the fundamental fallacy in both them and in that
part of Hale J’s reasoning in Re A, to which I have already referred, is that they treat habitual
residence as a legal concept – somewhat akin to domicil – whereas we have the authority of the House
of Lords in Re J, by which we and they are bound, that it is a question of fact.
Before a person, whether a child or an adult, can be said to be habitually resident in a country, it is
clear that he must be resident in that country. Of course, residence does not necessarily require
physical presence at all times. Temporary absence on holiday, or for educational purposes (as in Re A),
will not bring to an end habitual residence. But here the judge found as a fact, and on ample evidence,
that K became habitually resident in India. He has never to this day come back to England. As a
matter of fact, he has not been resident in England since he went to India in February 1994.
Bracewell J held that the mother’s change of mind both brought to an end K’s habitual residence in
India and gave him an habitual residence in England.
I have the gravest doubts whether the first proposition is correct. Clearly, the mother’s change of
mind could not alter the fact that he was, and is, physically resident in India. Whether her change of
mind could alone alter the “habitual” nature of that residence I very much doubt, but in any event it is
not necessary finally to decide that point on this appeal, since the one thing about which I am quite
clear is that the child’s residence in India could not become a residence in England and Wales without
his ever having returned to this country.
[2002] 1 FLR 409
As I said before, the idea that a child’s residence can be changed without his ever leaving the country
where he is resident is to abandon the factual basis of “habitual residence” and to clothe it with some
metaphysical or abstract basis more appropriate to a legal concept such as domicil.
In my judgment, K is in all probability still habitually resident in India. He is certainly not, and
was not on 20 July 1995 when the originating summons was issued, habitually resident in England and
Wales.’
That passage includes the other citation by Thorpe LJ.
[126] In my judgment for present purposes that passage needs to be read as a whole. It identifies the
submission which was rejected by the Court of Appeal because they concluded that the submission
approached habitual residence as a legal concept rather than as an issue of fact.
[127] In my view the judgment of Millett LJ also has to be read in the light of the whole of that
passage and the facts of the case.
[128] At the heart of the reasoning of Sir John Balcombe and Millett LJ are the propositions that
habitual residence (i) is, or is primarily, a question of fact, and (ii) is not an artificial legal concept
although Sir John Balcombe recognises that legal concepts are involved in determining that issue of
fact (see for example his approval at 892C of the decision of Wall J in Re S (Minors) (Abduction:
Wrongful Retention) [1994] Fam 70, [1994] 1 FLR 82 that one of two parents cannot unilaterally
change a child’s habitual residence although he, or she, removes the child from his home).
[129] I add that in his comments on the passage in the judgment of Hoffmann LJ in Re M (Minors)
(Residence Order: Jurisdiction) [1993] 1 FLR 495 which I have referred to above Sir John Balcombe
points out that in that case the child was physically in England with the mother (see 892B) and thus
that that passage in line with the conclusion reached in Re M (Abduction: Habitual Residence) [1996]
1 FLR 887.
[130] Both judges also recognise the fact that a person can be resident in a country whilst temporarily
away from it. In my judgment this is clearly in accord with a factual approach to what constitutes
habitual residence in the sense set out by Sir John Balcombe in the passage I have cited at 890 of his
judgment in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887.
[131] In other words as a matter of fact a person can have his settled abode, or home as part of the
regular order of his life, in one country when he or she is temporarily living in or visiting another
country.
[132] Given that approach of Sir John Balcombe and Millett LJ and the facts of Re M (Abduction:
Habitual Residence) [1996] 1 FLR 887 and Al Habtoor v Fotheringham [2001] EWCA Civ 186,
[2001] 1 FLR 951 the question arises whether it is right to extract the passages from their judgments
that:
‘Before a person whether a child or an adult, can be said to be habitually resident in a country it is
clear that he must be resident in that country’
and:
[2002] 1 FLR 410
‘ … it is not possible to acquire residence in one country whilst remaining physically present in
another’,
and say that they set down either:
(a)
a rule or test in law, or
(b)
a legal concept
that determines that a baby born abroad to a married couple who are habitually resident in England is
not also habitually resident here until he or she is physically present in England.
[133] In my judgment they do not do so because to give them this effect would run counter to the
proposition at the heart of the judgments of Sir John Balcombe and Millett LJ that habitual residence
is, or is primarily, an issue of fact and is not an artificial concept.
[134] It follows that in my judgment that:
(a) Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 and Al Habtoor v Fotheringham
[2001] EWCA Civ 186, [2001] 1 FLR 951 do not found the proposition that a newborn baby
cannot have an habitual residence in England until he or she is (or has been) physically present
in England; and
(b) generally a baby of a married couple (who are habitually resident in England at the time of the
birth of the child) will also at birth generally be habitually resident in England notwithstanding
that he (or she) is born abroad. I say generally because the issue is one of fact to be determined
having regard to all the circumstances of the case and it is therefore possible that the intentions
of the parents at the date of birth (eg that the child should live with grandparents abroad and that
was why the mother went abroad to have the baby) could found a different result.
Status of a foetus
[135] In the above reasoning I have not considered the status (if any) of a foetus in respect of the
issue of habitual residence and thus for example whether the fact that a child was conceived in
England is relevant. Rather I have considered the position at and after birth.
[136] In respect of the status of a foetus my attention was directed to:
(a) Re F (In Utero) (Wardship) [1988] Fam 122, [1988] 2 FLR 307 which I accept is Court of
Appeal authority for the proposition that having regard to first principles the court had to refuse
to extend the wardship jurisdiction to an unborn child since an unborn child had no right of
action in English law and no existence independent of the mother; and
(b) Re MB (Medical Treatment) [1997] 2 FLR 426 in which the Court of Appeal (amongst other
things) stated (although the issue did not arise in that case) its conclusion that in a case
concerning whether a mother could lawfully refuse a caesarian
[2002] 1 FLR 411
section that the court did not have jurisdiction to take into account the interests of the foetus.
I accept that both these cases support a conclusion that a child cannot acquire an habitual residence
until he or she is born and becomes an independent being. The same can be said of a case concerning
homeless persons to which I was also referred namely R v Newham London Borough Council ex parte
Dada [1996] QB 507.
[137] However I note that in Attorney-General’s Reference (No 3 of 1994) [1998] AC 245 which is a
case concerning a stabbing of a pregnant woman whose child was born grossly premature, only
survived for 121 days and issues relating to murder and manslaugher arose, it was stated that a foetus
was neither a distinct person separate from its mother, not merely an adjunct of the mother, but was an
existing organism to which existing principles could not necessarily be applied and the House of
Lords went on to decide that the mens rea for murder did not exist where the violence was directed to
the pregnant woman with the intention of harming her alone but that the mens rea for manslaughter
could be established. At 256B Lord Mustill said:
‘2.The second argument: the foetus as a separate organism
I would, therefore, reject the reasoning which assumes that since (in the eyes of English law) the
foetus does not have the attributes which make it a “person” it must be an adjunct of the mother.
Eschewing all religious and political debate I would say that the foetus is neither. It is a unique
organism. To apply to such an organism the principles of a law evolved in relation to autonomous
beings is bound to mislead. I prefer, so far as binding authority permits, to start afresh …’
The wardship and medical treatment cases I have referred to were not cited in the House of Lords but
in In re S (Adult: Refusal of Treatment) [1993] Fam 123, sub nom Re S (Adult: Surgical Treatment)
[1993] 1 FLR 26 was referred to in argument. That case was disapproved in by the Court of Appeal in
Re MB (Medical Treatment) [1997] 2 FLR 426, 440D. That case was heard by the Court of Appeal
and their judgment was given after argument but before judgment in Attorney-General’s Reference
(No 3 of 1994) [1998] AC 245.
[138] It seems to me that this approach of the House of Lords potentially gives rise to an argument
that for the purposes of determining habitual residence (and perhaps in particular when that is relevant
for the purposes of jurisdiction of a family court – see the argument referred to by Black J in Re N
(Abduction: Habitual Residence) [2000] 2 FLR 899, 906B–906D (cited above) – although this is not
an argument that I have taken into account) that the point that a foetus is a unique organism is relevant
and can be taken into account. For example it might enable a father who does not have parental
responsibility to issue proceedings to give him rights of custody for the purposes of the Hague
Convention on the Civil Aspects of International Child Abduction 1980 before the pregnant mother
left the jurisdiction.
[139] Such arguments were not developed before me and one only has to note the medical treatment
cases to see that they need to be fully and carefully considered before any decision is reached thereon.
[2002] 1 FLR 412
[140] In my judgment it has not been necessary for me to consider them in this case, I have not done
so and I have not based my decision on them. I mention them because the status of a foetus was
mentioned during the course of submissions before me.
This case
[141] My reasoning and conclusion set out above founds an answer that if H had been born in
Bangladesh when it was the common intention of both the mother and the father that they were there
on holiday H’s habitual residence would have been in England as soon as she was born and it was not
necessary for her to be returned to England, and therefore to actually be physically present in England,
before she became habitually resident here.
[142] Does it make a difference that before H was born the father had informed the mother that he
was not going to return her and the children to England? In my judgment the answer is ‘no’ because:
(a)
as I have indicated on the facts as I have found them it is not established that the father had
formed an intention that H should live in Bangladesh by the date of her birth;
(b)
if that conclusion is wrong on the facts as I have found them the mother never formed the
requisite intention that the home of the children, or H, should not be in England; and
(c)
if as in my judgment is the case at her birth H had an habitual residence in England, like
the other children she has not lost it.
[143] As to point (b) if the relevant intentions of the parents were at odds at the date of H’s birth as
to where H should have her home in my judgment a proper application by analogy of (i) the earlier
authorities which as Black J recognises in Re N (Abduction: Habitual Residence) [2000] 2 FLR 899
establish that one of two persons with joint parental responsibility cannot change the habitual
residence of a child unilaterally (see for example Re M (Abduction: Habitual Residence) [1996] 1 FLR
887, 896B and In re P (GE) (An Infant) [1965] Ch 568, 585F–586C), and (ii) the conclusions and
reasoning in Re N (Abduction: Habitual Residence) (at [2000] 2 FLR 899 in particular at 908F–909C)
founds the conclusion that the father could not unilaterally change the established order of the life of
the family and thus H’s habitual residence at birth.
[144] Naturally I accept that the earlier cases are not dealing with the habitual residence of a child at
birth but in my judgment the logic of the earlier decisions which flows from the point that young
children and babies cannot form the necessary intention to establish their habitual residence and it is
the intentions of both the relevant adults (when they are parents with joint parental responsibility) that
matters found the conclusion that the father in this case should not be, and was not, able to unilaterally
bring about a change to what would have been the position on the birth of H if the established order of
the life of the parents and their children had remained the same.
[145] In my judgment this is not giving a special status to H as a foetus. Rather it is looking at the
position at her birth and asking what would have been the position absent a unilateral change of
intention by one parent as to the home of the family, or H.
[2002] 1 FLR 413
Conclusion as to the habitual residence of H
[146] In my judgment for the reasons I have given she was (or became) habitually residence in
England on her birth and (like the three oldest children) she has not lost that habitual residence.
The orders I should make
[147] As to this I was referred to Re KR (Abduction: Forcible Removal by Parents) [1999] 2 FLR
542 in which Singer J sets out essential terms of the order he made which he hoped may have some
extra territorial effect in that they might encourage the relevant authorities in India to give assistance
and which he was informed did have that effect. With the exception of the order directed to ‘every
person in a position to do so’ to co-operate in assisting and securing the immediate return of the child
to England the parts of his order which Singer J sets out in his judgment are in the form of recitals and
requests. It is unclear which parts of his order had the effect he refers to and thus whether the order he
made against ‘every person in a position to do so’ was regarded as important by the Indian authorities.
On the facts of his case when the parents were in England and the child was in India with persons
whose identities were not known to the court it is easy to see why Singer J took the pragmatic course
he did in making that order. Here the mother’s belief is that the children are with (or under the control
of) the father.
[148] Like Singer J I am naturally very conscious of the territorial limits of this court’s jurisdiction
but would like to do what I can to engage the assistance of the authorities in Bangladesh in ensuring
that the medium- to long-term welfare of the children is determined by this court on a properly
informed basis.
[149] I say this court because I have concluded that it has jurisdiction and on my findings (in the
absence of any active participation by the father) all four children have been wrongly retained by him
in Bangladesh, and thus abducted. In those circumstances it seems to me that this jurisdiction (being
the jurisdiction of the established matrimonial home before the abduction) is the proper and
convenient forum to determine the medium- to long-term future of the children. I say on a properly
informed basis because if the children are returned to this jurisdiction (which was the family home) I
would hope that the father would participate in hearings relating to their future.
[150] In my judgment (i) the recitals and requests contained in the order made by Singer J, can be
adapted to meet the different situation in this case, and (ii) the circumstances of this case and the
orders I propose to make against the father mean that it is not necessary, or appropriate, for me to
make an order against unidentified persons.
[151] Although the originating summons does not include an application for declaratory relief I was
asked to consider making declarations as to the habitual residence of the children. In my judgment it is
not necessary, or appropriate, for me to do so because (i) justice to the mother (and the children) can
be met by a recital as to habitual residence and jurisdiction, and (ii) to do so might prejudice the father
having regard to his participation in these proceedings even though I accept that as he was served and
given a full opportunity to take part therein I could have made a declaration if it had been necessary.
In reaching this conclusion I have had regard to
[2002] 1 FLR 414
Wallersteiner v Moir; Moir v Wallersteiner and Others [1974] 1 WLR 991 in particular at 1028H–
1029D and 1030C–G.
[152] I am asked to make the children wards and to give care and control of them to the mother.
[153] I am wary of making orders that cannot be enforced because it is known that in the
circumstances they would have to be enforced abroad (or for other reasons) and I have therefore
considered whether I should qualify an order giving care and control to the mother by words such as
‘on the return of the children to England’. I have decided not to do so because:
(a) in my judgment the jurisdictional sections in the Family Law Act 1986 that I have set out at the
beginning of this judgment envisage that an unqualified order giving care and control of a child
to his, or her, mother can be made when the child is habitually resident in England but not
actually present here; and
(b) such a qualification in this case could well be contrary to the interests of the children by, for
example, hindering a handing over of the children to the mother (or at her direction) outside
the jurisdiction of this court.
[154] Accordingly I shall order that all four children do remain wards during their respective
minorities, or until further order, and that their care and control be given to the mother.
[155] I am asked to make injunctive orders against the father. First separate orders that he do return
the children (i) to this jurisdiction and (ii) to the care and control of the mother and secondly orders
restraining him from removing them from that care and control or from England and Wales. In my
judgment, notwithstanding the fact that he is outside the jurisdiction of this court and the limits of that
jurisdiction I have jurisdiction to make such orders against him in personam in, and in support of, the
wardship (see s 37 of the Supreme Court Act 1981).
[156] The positive orders should include provisions that he do, or do procure, the return and giving
of care and control. The negative restraining orders should restrain him from so acting by himself or
through others.
Order accordingly.
Solicitors: Harter & Loveless for the mother
CAFCASS Legal Services for the defendant
PHILIPPA JOHNSON
Barrister