CB (Habitual Residence: Child Born and Present Abroad), Re

MB and FB are British citizens. In October 2024, MB gave birth to their child, CB, in Spain. When CB was about one month old MB applied for a British passport for her. The application triggered enquiries which led to CB being removed from the care of her parents by the Andalusian child protection authorities at the age of five weeks. She remains in their care.

On 1 December 2024, as a litigant in person, MB issued an urgent application in the Family Division of the High Court seeking orders under the inherent jurisdiction against “The Spanish Authorities” that CB be made a ward of court and be immediately returned to England. The application did not set out any useful details or history. After a number of case management hearings at none of which did I make CB a ward of court or order her return to England, but after which the full picture has gradually emerged, I listed the matter for a further hearing to determine jurisdiction as a preliminary issue. The issues for determination are:

By the time of the hearing, the fourth issue was resolved: Birmingham Children’s Services, the First Intervenor, has accepted that it would be the designated Local Authority.

The proceedings have been significantly hindered by the conduct of the Applicant:

Hence, the true position is far distant from that stated by the Applicant in her application that CB had been “abducted” and had only been born in Spain due to “ill-health”. MB has had previous children removed from her care and has previously taken steps to avoid the involvement of children’s services when becoming pregnant and giving birth. There is evidence that she planned to do so again.

The First Respondent engaged with proceedings remotely at case management hearings which was very helpful to the court but I was anxious about it remaining a party to proceedings and one of the issues for determination at this preliminary issues hearing was whether it should be discharged. The information given to the Court was that the removal of CB from her parental care was an administrative act and that court involvement in Spain was only required after six months. The First Respondent was open to transferring CB to the care of an English Local Authority. That position changed shortly before this hearing which the First Respondent chose not to attend. A communication to the Court in translation states that:

I am very grateful to the First Respondent. It was under no obligation at all to assist the Court but has done so. The application was brought against it and could have been dismissed at an early stage had the facts been made clear to the Court but they were not. No court proceedings were underway in Spain until quite recently and so there was no judicial involvement. Due to the complete lack of relevant information from the Applicant (until she was represented from February 2025) the Court relied on information from the First Respondent. There were no Hague Convention 1980 proceedings because there was no arguably wrongful retention of the child in Spain: whether CB was habitually resident in the UK or Spain, the Spanish authorities were entitled to take urgent child protection measures.

Many applications are made urgently in the Family Division seeking orders that children who are in another country shall be returned to the jurisdiction of England and Wales. This case emphasises the need for full and frank disclosure to the Court by applicants and why caution should be exercised, in particular before making any orders without notice. Faith in the High Court to achieve the return of children from abroad remains high but is sometimes unrealistic. An order made in the Royal Courts of Justice will not often be sufficient to secure return. However, the High Court may have jurisdiction to make such an order and, allied to other measures, a return order can have a positive effect. When the other country is a signatory to the Hague Convention 1980, the better course will nearly always be to apply for a return order to be made in the other country through the mechanisms available under that Convention. Here, because no argument could be made that the child had been wrongfully removed to or retained in Spain, the Hague Convention 1980 was of no assistance to the Applicant. Accordingly, the Court has been invited to consider exercising its inherent jurisdiction.

This was a case in which a state authority rather than a parent or family member had kept the child from being present in this jurisdiction. That authority is within a state that is a signatory to the 1996 Hague Convention. The child was born in that country, has lived all her short life in that country and has never been present in England and Wales. The authorities in that country are fully aware of the child welfare proceedings in which MB and FB have previously been involved. The bare facts do not provide fertile ground for the application before the court.

Domestic legislation governing jurisdiction in relation to certain applications under the inherent jurisdiction is found in the Family Law Act 1986. By operation of ss1(1)(d), 2(3), and (3) of that Act the Court has jurisdiction to make an order under the inherent jurisdiction if the 1996 Hague Convention applies or, if it does not apply, the child is habitually resident in England and Wales at the relevant date.

All parties at the hearing agreed that the date on which habitual residence is to be determined is the date of the issue of proceedings on 1 December 2024 – London Borough of Hackney v P and Others [2023] EWCA Civ 1213.

Article 5 of the 1996 Hague Convention provides that the judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property.

If the child is habitually resident in England and Wales, then Article 8 of the 1996 Hague Convention would allow the Court here to make a request of the authorities in Spain to assume jurisdiction if “it considers that the authority of another Contracting State [Spain] would be better placed in the particular case to assess the best interests of the child.” If the child is habitually resident in Spain, then Article 9 of the 1996 Hague Convention allows for the authorities of England and Wales to request the Spanish authorities to authorise the authorities in England and Wales to take child protection measures as they consider necessary. Such a request may be made if the authorities in England and Wales “consider that they are better placed in the particular case to assess the child's best interests.”

CB is a British citizen because her parents are British Citizens. Therefore the High Court may exercise its parens patriae jurisdiction – see Re M (A Child) [2020] EWCA Civ 922 for a thorough review of the case law and statement of the principles to be applied. As Moylan LJ held in that case, the jurisdiction should only be exercised when there are “circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction.”

The first question therefore is where CB was habitually resident on 1 December 2024. Mr Jarman KC and Mr Elgadhy submit that she was habitually resident in England and Wales. Her parents were both British and intended to remain living in England. They intended to return CB to England as evidenced by the fact that they applied for a British passport for her. All her extended family are in England. The Second Respondent supports that position. The First Intervenor opposes it and the Second Intervenor is neutral on the issue.

The Court of Appeal considered the concept of habitual residence in M (Children) (Habitual residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105 and I have regard in particular to paragraphs [42] to [64] of the judgment of Lord Justice Moylan in which the significant authorities on the issue are reviewed, and the following principles are extracted:

In A v A (above) the Supreme Court considered the question of habitual residence in the context of a child who had never been present in England and Wales. Having reviewed the case law on habitual residence, Baroness Hale asked the following question and gave her answer:

“55.

So which approach accords most closely with the factual situation of the child—an approach which holds that presence is a necessary precursor to residence and thus to habitual residence or an approach which focusses on the relationship between the child and his primary carer? In my view, it is the former. It is one thing to say that a child’s integration in the place where he is at present depends on the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. 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. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been.

56.

However, I cannot be confident that this is acte clair for the purpose of European Union law, for several reasons. First, the Court of Justice has not so far had to consider a case such as the present, or indeed any of the examples given in para 42 above. Second, the facts are particularly stark. This child would probably not have been conceived, and certainly would not have been born and kept in Pakistan, had his mother not been held there against her will. Without that, the child would undoubtedly have become habitually resident in this country. Third, the European court would have to consider the implications for the Hague Child Abduction Convention if a child such as this, or a child born on holiday, were held to have no country of habitual residence. The whole Convention, beginning with article 3 , is predicated on there being a state where the child is habitually resident immediately before the wrongful removal or retention. Can it be the case that the Convention would not apply if the child born to an English mother while on holiday abroad were abducted from the hospital?

57.

Fourth, there is judicial, expert and academic opinion in favour of the child acquiring his mother’s habitual residence in circumstances such as these. Principal amongst those judicial opinions is the conclusion reached by Lord Hughes JSC in this very case. Reunite International Child Abduction Centre, the leading non-governmental organisation specialising in advice, assistance, mediation and research in relation to international child abduction and the movement of children across international borders, have intervened in this case in support of the mother. They submitted that, while there should be no ule that a new-born child takes the habitual residence of the mother, the child’s place of birth should carry little weight where the only reason that the child has been born in a particular place is because the mother has been deprived of her autonomy to choose where to give birth. The Centre for Family Law and Practice, whose co-director has conducted some important research into child abduction, similarly submitted that a person who had used such coercion should not be enabled to deprive the *25 child of the protection of the courts of the country where he would otherwise have been born. More broadly, it has been suggested that, given the inherent vagueness of the concept, the decision in any particular case will inevitably depend on a balance between the applicable policy considerations: see Rhona Schuz, “Policy Considerations in Determining the Habitual Residence of a Child and the Relevance of Context” (2001) 11 Journal of Transnational Law and Policy 101.

58.

Hence I would not feel able to dispose of this case on the basis that Haroon was not habitually resident in England and Wales on 20 June 2011 without making a reference to the Court of Justice. But we can only refer a question to the court if it is necessary for us to determine the case before us. For the reasons which will appear below, it is not at present so necessary.”

Lord Hughes in the same case held:

“90.

The sole question on this part of this case is whether the factual inquiry required is overlain by a rule which prevents a person from being habitually resident in a place where he has not yet set foot. I see no occasion for any such rule. There is, I entirely agree, also no “rule” automatically ascribing habitual residence by dependence to a place to which the child has never been. There is a factual inquiry into the integration of the family unit to which he or she belongs, and that may well yield the conclusion that the child shares the habitual residence of that unit even if he has not yet achieved physical presence there, especially if he is being prevented by coercion or other force majeure from doing so. The decision of the Court of Appeal in this case involves a rule or general proposition because it necessarily excludes habitual residence without some past physical presence. The contrary approach, which to my mind is correct, involves no rule or generality at all, save for the advice to look, in the case of an infant, at the position of the family unit of which he is part. This does not involve a rule for dependent habitual residence. It merely asserts the possibility that habitual residence may exist in a state which is the home of the family unit of which the infant is part, and is where he would be but for force majeure.”

In the later European Court of Justice decision in UD v XB (2018/C455/26) on referral from the High Court of Justice, Family Division, the operative part of the ruling was:

“Article 8(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted to the effect that a child must have been physically present in a Member State in order to be regarded as habitually resident in that Member State, for the purposes of that provision. Circumstances such as those in the main proceedings, assuming that they are proven, that is to say, first, the fact that the father’s coercion of the mother had the effect of her giving birth to their child in a third country where she has resided with that child ever since, and, secondly, the breach of the mother’s or the child’s rights, do not have any bearing in that regard.”

Article 8(1) of the Council Regulation provided:

“1.

The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”

Applying similar provisions to Articles 8 and 9 of the 1996 Hague Convention, a finding that a child was habitually resident in one country did not preclude a transfer of jurisdiction to another country, for example the country where the child’s parents were habitually resident.

Following the UK leaving the European Union, the Council Regulation is no longer binding on the Courts in our jurisdiction. The ECJ in UD v XB made a determination on the Council Regulation not the 1996 Hague Convention. Nevertheless, the concept of habitual residence is common to the Regulation and the Convention and the ECJ’s determination is clear and addressed the very point that Baroness Hale observed in A v A the ECJ had not yet had the opportunity to consider. Having considered such a case, the ECJ held that presence (at some point in a child’s life) in a country was a necessary condition for its habitual residence there.

In Re J & H (Jurisdiction: 1996 Hague Convention : residual domestic jurisdiction: parental responsibility jurisdiction) [2024] EWHC 1395 (Fam) Williams J reviewed the case law on habitual residence and concluded at [28(xi)] that:

“A young infant cannot gain habitual residence in a state where he was not born and which he has not visited and has been living with his primary carer elsewhere since birth. A child cannot be habitually resident in a country in which he has never been present;”

If habitual residence is an issue of fact, then it is not generally suitable for the application of immutable rules. However, the line of authorities to which I have referred now lay down a clear rule that a child cannot be habitually resident in a country in which they have never been present. One can imagine circumstances in which the relevant date for determining a child’s habitual residence was only a few days after their unplanned birth in country A and whilst their parents were in transit home to their country of habitual residence, country B. The rule now established would mean that the child was habitually resident in A but, in such circumstances, a request to transfer jurisdiction from A to B might very well follow so that the country best placed to make determinations as to welfare would do so.

In the present case, CB was born and has lived all her life in Spain. She has never been present in England. As of 1 December 2024 she had been removed from her parents’ care and was in the care of the authorities in Spain. Her mother was not forced by any other person to give birth to her in Spain and there is evidence that she chose to do so. CB has never had any integration in a family or social life environment in England and Wales. In contrast, she was integrated, insofar as a newborn infant can be, into the social and family environment in Spain. She had been under the care of health services there. Her parents had cared for her there and, at the relevant date she was in the care of authorities and foster carers there. It is often said that a starting point is that a very young child’s place of habitual residence will be that of their main carer. In the present case, the link to CB’s parents’ place of habitual residence had been broken by 1 December 2024 when she had been lawfully removed from their care. Her carers then were the Spanish authorities and foster carers acting on their behalf. She was not being cared for by her parents. Nor, by then, was her residence in Spain temporary: there was no expectation that she would soon be moved to England. As has been proved to be the case, the authorities in Spain were liable to keep her in their care for a prolonged period, even for the remainder of her childhood. Hence, there was a degree of stability in her residence in Spain.

Even if there were no immutable rule that a person cannot gain habitual residence in a state where she was not born and which she has never visited, I would be satisfied that at the relevant time CB was habitually resident in Spain and not in the jurisdiction of England and Wales. That is where she had a degree of integration and a degree of stability.

As it is, the line of authorities to which I have referred now establishes a clear rule that a child cannot be habitually resident in a country where they have never been present. In the absence of any appellate authority to the contrary, I shall apply that rule to the present case.

I conclude that at the relevant time CB was habitually resident in Spain.

Accordingly, the means of transfer of jurisdiction to England and Wales would arise, if at all, under Article 9 of the 1996 Hague Convention. The trigger for a request under Article 9 is not whether it would be in the best interests of CB to live in England but whether this Court considers that it is “better placed in the particular case to assess the child's best interests.” Unhesitatingly, I have concluded that the authorities in Spain are better placed to assess CB’s best interests and that no such request to transfer jurisdiction should be made. CB is in Spain and has been since her birth. CB is in foster care and the relevant Spanish authorities have responsibility for her care and full knowledge of her current circumstances. They are also fully apprised of the parental history in England and Wales and in Spain. The parents have engaged in the legal process in Spain regarding their daughter. Transfer would cause delay in resolving important decisions about CB’s care and her future: that is relevant not only to her welfare but also to the question of which authorities are best placed to make decisions about her welfare. Indeed, child welfare decision-making is advanced in Spain, as is appropriate to CB’s welfare. I refuse to countenance applying Article 9 of the 1996 Hague Convention to request the Spanish authorities to authorise the court or authorities in England to make decisions about the protection of CB.

The parens patriae jurisdiction does not depend on the habitual residence of the child being in England and Wales. The child’s nationality will give the Court jurisdiction to act. But the jurisdiction should be exercised with caution and only when sufficiently compelling circumstances make it necessary to exercise it to protect a child. Mr Jarman KC realistically accepted that it would be unprecedented for the High Court to exercise that jurisdiction to protect a child in a country that is a signatory to the Hague Convention country and/or a country that is a member of the European Union. Manifestly, CB does not need this Court’s “protection” from the child protection authorities in Spain. One only has to articulate the proposition to see that is untenable. Now that the Court is apprised of the circumstances of CB being taken into the care of the authorities in Spain, and remaining under their protection, it is clear that she does not need the protection of the High court of England and Wales.

Accordingly, I conclude that the Court does not have jurisdiction under the 1996 Hague Convention or the Family Law Act 1986 to make the orders sought and ought not to exercise its parens patriae jurisdiction in respect of CB. As was accepted by Counsel, it follows from those determinations that I should dismiss the application.

I again thank the Spanish Authorities. I am sorry that resources have been expended in dealing with these court proceedings which, but for the Applicant’s concealment and evasion, would have been concluded much sooner, perhaps by being dismissed at the first hearing.