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(Family Division; Sumner J; 4 April 2007)
The four children had been taken into care by the local authority and accommodated with foster carers for a number of years. A maternal aunt in Canada came forward as a possible carer, and after much investigation was approved as a long-term foster carer. The children had been living with the aunt in Canada for about a year, visiting England twice during that time. The authority sought a Convention adoption order, which could only be granted if the children were no longer habitually resident in England.
The children had not acquired habitual residence in Canada, as the aunt did not have parental responsibility, and the children were present in Canada only at the behest of the local authority. The children were dependent on the authority to determine their residence, not upon the aunt. It followed that habitual residence in England had not ended. There had been no settled intention on the part of the authority for the children to live in Canada; there had been, at most, a hope that Canada might become a settled home for the children. It might be, when considering habitual residence, that eventually sheer passage of time could outweigh the existence of problems in relation to residence, but that had not yet happened in this case. A placement of children overseas by a local authority, in the absence of any final plan for them, should not run the risk that the children would lose their habitual residence after a year or two, unless there was compelling evidence leading to that conclusion.
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