Re J (A Child: Habitual Residence)  EWHC 3364 (Fam)
Family Division, Peter Jackson J
Abduction - Child placed with maternal grandparents in UK when mother returned to USA - Father had significant contact in UK - Whether grandmother's removal of child to USA was sufficient to alter the child's habitual residence - Whether the English court retained jurisdiction
3 December 2012
The American mother left her child in the care of the maternal grandparents in the UK when she was a year old and returned to the USA. For 6 years she had no contact with the child aside from occasional video contact. There was a residence order in place in favour of the maternal grandmother and after DNA tests confirmed paternity of the father, he had a significant role in her life with regular contact. During one weekend when the father and paternal grandmother were scheduled to have contact the maternal grandmother sent a message informing them that she was taking the child to the USA to see her mother. On their arrival in the USA the maternal grandmother informed the child's school in the UK that she would not be returning. The father initiated proceedings and was granted parental responsibility and return orders. The mother and maternal grandmother claimed the English courts no longer had jurisdiction due to the child now being habitually resident in the USA.
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 must survey facts of all kinds including events, feelings, relationships, intentions, and legal rights and wrongs. Whether something was legal or not was a fact. Unless there was a specific mandate for doing so, the overall assessment did not give automatic precedence to one kind of fact over another. 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) The child's parental figures at the time of removal were the grandparents but, while they have been the most important figures in her life, it could not be said that the grandmother's will ‘determined the element of volition involved in the concept of habitual residence', as in Mercredi, even if the will of the mother was also taken into account. The grandparents were granted parental responsibility by the court subject to a clear restriction in relation to permanent removal, and the position of the father and the child had to also be considered when assessing habitual residence (see para ).
(3) Considerable weight was attached to the reality of the child's situation and lesser weight to the legal technicalities. The reality was that she was an English child who had spent all of her 2500-plus days of life as a habitual resident of this country and she did not lose that status as a result of a contrived absence of 13 days. Her roots here were deep and her habitual residence did not change as a result of this legally insecure removal (see para ).
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