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16 SEP 2013

HABITUAL RESIDENCE: N v K [2013] EWHC 2774 (Fam)

(Family Division, Cobb J, 11 September 2013)

The unmarried mother and father, both US nationals had a 12-year-old child together. When their relationship broke down the mother initially remained in Florida where they had lived together as a family until she met her new partner who was British. Following the mother's marriage she applied for permission to take the child to the UK for a holiday. The father made an application for sole custody and an order prohibiting the child's removal from the jurisdiction. The mother thereafter sought permission to relocate to the UK for 2 years.

At a full custody hearing in Florida the mother was granted permission to relocate for 2 years. The parents were awarded shared parental responsibility and a schedule of contact between the father and child was drawn up.

Prior to the expiration of the 2-year-period the parents agreed that the mother and child could stay for a further 2 years. The agreement permitted the father to call for the child's return during the period which he claims he did. However, the child had now lived in the UK for 6 years and had had contact with the father in the US following which he had returned her each time.

The father issued proceedings in the US court to enforce the final order of paternity and seek the child's return to the jurisdiction. The mother claimed that the child was now habitually resident in England and Wales and sought the father's agreement to an order attesting to that. He refused. The mother issued proceedings in the High Court and sought a residence order under the inherent jurisdiction. The father, however, contested the jurisdiction of the court of England and Wales asserting proceedings were already ongoing in the USA.

Despite attempts at judicial liaison between the two jurisdictions by the Office of International Family Justice, the judge in the US court granted the father permission to enforce the custody judgment without judicial liaison with the English jurisdiction. The judge held that the English court did not have jurisdiction over the matter.

This had been a paradigm case for international judicial liaison. The result of that not being achieved was that simultaneously in two jurisdictions welfare-based decisions were being sought and made in relation to the child.

The Supreme Court in Re A (Children) [2013] UKSC 60 made clear that a uniform test should apply to the question of habitual residence and it should be that adopted by the Court of Justice of the European Union. 

Essentially habitual residence was a question of fact. The child had lived in England for half of her life and on the evidence she was thoroughly integrated here. Her mother had married a British national and they had made their family home here. The child attended school here, took part in a wide range of extra-curricular activities and her social life and friends were here. In addition her half sister was born here. There was no doubt she was habitually resident here. The court of England and Wales therefore had jurisdiction to entertain the mother's application. The judgment would be sent to the Network Judge for the USA for judicial liaison.

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