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Family Division, Peter Jackson J
Abduction - Nigerian child placed with uncle and aunt in England - Parents removed child to Nigeria without consent of uncle and aunt 6 years later - Whether the child's place of habitual residence remained the UK - Whether the English court retained jurisdiction
3 December 2012
The child, now 7, who had been born in the UK and briefly lived in Nigeria with his parents, was placed with a maternal uncle and aunt in the UK. The parents signed a document expressing that the uncle and aunt were now his legal guardians and next of kin. For 5 years the uncle and aunt had care of the child attending to his day-to-day upbringing and arranging his schooling. The parents had infrequent contact, visiting on only a few occasions. During one visit the parents travelled to the UK with the child's sibling and removed him, returning to Nigeria via Dubai. The uncle and aunt initiated proceedings and were granted residence and return orders. The parents challenged the jurisdiction of the English court, claiming that the child was now habitually resident in Nigeria. The parents claimed that they had provided the uncle and aunt with a document stating their intention to return the child to Nigeria. They denied this and claimed they had no forewarning of the parents' plans.
Held - finding the child to remain habitually resident in the UK -
(1) The determination of issues of habitual residence was a question of fact. The assessment had to survey facts of all kinds including events, feelings, relationships and intentions, legal rights and wrongs. Whether something was legal or not was a fact. But unless there was a specific mandate for doing so, the overall assessment did not give automatic precedence to one kind of fact over another. In particular, there could be circumstances in which habitual residence could be lost following an unlawful removal (for example, with the passage of time), and circumstances in which it would not be lost following a removal that was technically lawful (for example, removal by a parent with sole parental responsibility who had no actual relationship with the child) (see para ).
(2) Considerable weight was attached to the length of time that the child had lived a settled life in England and to his ties to the uncle and aunt. The united position of his parents also carried weight, and could prevail in any welfare assessment. However, when considering the narrower issue of jurisdiction, this was not a case in which the parents had any right to change the child's habitual residence simply by an exercise of will. They were not his physical carers and as a matter of fact his habitual residence had not automatically followed theirs. For the past 5 years he had been habitually resident in England and Wales, while they had been habitually resident in Nigeria. Their intentions and actions in removing him did not deprive the child of his ties to this country, which created a proximity that entitled him to a proper consideration of his best interests (see para ).
(3) The case was distinguishable from the facts in Re M (Residence Order: Jurisdiction)  1 FLR 495 where the children were in a short-term placement with family members in the UK (see para ).
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