“Habitual residence” is not intended to be a term of art, or a specific legal concept, but simply to describe a person who is resident, rather than merely present, and is so habitually, rather than just temporarily. The term appears in section 3 of the Family Law Act 1986 (“the 1986 Act”), which places constraints on the powers of the courts.
Under the Children Act 1989 (“the 1989 Act”), the court can make a “Part I order” in relation to, for example, contact with or residence of a child. The High Court also has inherent jurisdiction to declare a child a “ward of the court”. This power, known as parens patriae, allows the court to act on behalf of vulnerable adults and children by putting them under the guardianship of the court.
However, in some circumstances the 1986 Act limits both the court’s power to make a Part I order under the 1989 Act, and its inherent jurisdiction which “gives care of a child to any person, or provides for contact with, or the education of, a child,” to cases where the child is “habitually resident” in England and Wales. Therefore, the court’s interpretation of “habitual residence” can be crucial in some family proceedings.
Supreme Court judgment
On 9 September 2013, the Supreme Court gave judgment in a case in which the mother sought the return of her four children from Pakistan. The elder three children were born in England between 2001 and 2005. However, in 2008, the mother moved into a refuge complaining of abuse. In 2009, she and her three children visited Pakistan where she was pressurised to reconcile with her estranged husband. She subsequently became pregnant and, despite wishing to return to England, gave birth to her fourth child in Pakistan in 2010.
It is this fourth child that was the subject of the Supreme Court’s judgment. Having finally travelled to England without her children in 2011, the mother applied for her children to be returned to her. At first instance, the High Court made the relevant order, holding that all four children were habitually resident in England. There was no issue with the elder three children, all of whom have dual British-Pakistani nationality, but the father appealed the decision in relation to the youngest, who has never stepped foot on English soil.
The Supreme Court held, by a majority of four to one, that the youngest was not habitually resident for this very reason, stating: “It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country.”
However, the Supreme Court decided that the High Court still had jurisdiction to order the return of the youngest child, even though he was not habitually resident in England and Wales. Therefore, the case was remitted to the High Court for a decision on whether or not to should exercise this jurisdiction.