Wirral Metropolitan Borough Council v AZM & Anor

AZ was born in a hospital in England in October 2025. Her mother, AZM, is a

The family’s history in Austria became known to the Local Authority which made an application for an interim care order on day one of AZ’s life. Over the following weekend close supervision was maintained of AZM and her baby whilst they remained in hospital. On day four of life, the Court made an interim care order, exercising its jurisdiction to take urgent protective measures given AZ’s presence in this jurisdiction. AZ was placed with foster carers. She remains a looked after child.

Pursuant to orders made by HHJ Coppel and Mrs Justice Gwynneth Knowles, attempts have been made to obtain information from the Home Office about AZM’s immigration status, and to liaise with the Austrian authorities with a view to their accepting a transfer of jurisdiction. Suffice to say that neither avenue has yet borne fruit and I have given directions to renew efforts and to liaise with the Romanian authorities also.

The short preliminary issue which I have decided should be determined at this stage is that of AZ’s habitual residence. The Hague Convention 1996 determines jurisdiction in this case. The UK, Austria, and Romania are all contracting states.

The time at which habitual residence is to be assessed is upon the issue of these proceedings. In principle it is open to the court to find that AZ was habitually resident in this jurisdiction in which case the courts of England and Wales have jurisdiction over her welfare (Art 5) or that her habitual residence cannot be established in which case the courts of England and Wales have jurisdiction whilst she is present here (Article 6(2)). In either event, a request can be made to the authorities in another contracting state with which AZ has a substantial connection for it to assume jurisdiction for protection of her welfare (Art 8). Alternatively, in principle the court could find that AZ was habitually resident in another jurisdiction.

Ms Howard, for AZM, adopting the written position statement drafted by Mr Sanders, Counsel, maintains that AZ cannot have been habitually resident in any jurisdiction other than England and Wales because she had never been outside this jurisdiction, and that this is not an exceptional case in which no country of habitual residence can be established. AZ was habitually resident here.

The Local Authority’s position, in effect supported by the Guardian, is that at the relevant date the child had not acquired habitual residence in this jurisdiction but that in any event Austria, alternatively Romania, would be better placed to take steps to protect her welfare.

As I indicated at the hearing on 12 December 2025 it is premature for the Court to express a view about whether another state is better placed to assess AZ’s best interests. Enquiries of the Home Office are not complete and further evidence should be adduced abut AZM’s movements and intentions prior to her daughter’s birth. The Local Authority, seeking to apply London Borough of Redbridge v JL & ML [2025] EWFC 292, is cautious about taking steps beyond an effective stay on proceedings and which might be interpreted as an acceptance (by it) of jurisdiction but, encouraged by the Court, it is not sitting on its hands whilst jurisdiction is being determine: an initial viability assessment of the maternal grandmother has been undertaken. However, I emphasise that the fact that the Local Authority is taking such steps, so as not to waste time, does not mean that it tacitly accepts responsibility for AZ’s welfare beyond taking urgent protective measures.

No party has submitted that AZ’s habitual residence is in another state. On the case put forward by the Local Authority and the Guardian, it may seem academic whether AZ’s habitual residence is in this jurisdiction, as the Courts of England and Wales would have jurisdiction under Art 6(2) if AZ’s habitual residence could not be determined. But AZ’s place of habitual residence is a key findings and it is important that the basis of jurisdiction is properly established.

It is now firmly established that the date on which habitual residence is to be determined is the date of the issue of proceedings which here was at one day of life– London Borough of Hackney v P and Others [2023] EWCA Civ 1213.

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 paras. [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 J v E (Habitual Residence) [2024] EWHC 196 (Fam) at [87] and [88] MacDonald J summarised the principles. I refer to his general statement at [87] and three particular relevant factors he set out at [88]:

“[87] Where then does this plethora of authority on the concept of habitual residence leave the busy judge who is required to determine the preliminary issue of jurisdiction, without that determination "becoming an unworkable obstacle course, through which the judge must pick his or her way by a prescribed route or risk being said to have made an unsustainable finding?" Reading the foregoing authorities together, it is tolerably clear that the task of determining habitual residence falls to be discharged by the court asking itself whether, having regard to all the relevant circumstances and as a matter of fact, the subject child has achieved a degree of integration in a social and family environment in the country in question sufficient for the child to be habitually resident there.

[88] …

xi)

In circumstances where the social and family environment of an infant or young child is shared with those on whom he or she is dependent, it is necessary to assess the integration of that person or persons (usually the parent or parents) in the social and family environment of the country concerned. In respect of a pre-school child, the circumstances to be considered will include the geographic and family origins of the parents who effected the move.

xii)

A child will usually, but not necessarily, have the same habitual residence as the parent(s) who care for her. The younger the child the more likely that proposition but this is not to eclipse the fact that the investigation is child focused.

xiii)

Parental intention is relevant to the assessment, but not determinative. There is no requirement that there be an intention on the part of one or both parents to reside in the country in question permanently or indefinitely. Parental intent is only one factor, along with all other relevant factors, that must be taken into account when determining the issue of habitual residence. It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent."

Recently I had cause to consider the habitual residence of a child born to British parents in Spain, who had been taken into the care of the authorities there: Re CB (Habitual Residence: Child Born and Present Abroad) [2025] EWHC 1712 (Fam). I reviewed the authorities on the habitual residence of young children who had never left one contracting state, as follows:

“ 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.”

I have statements from AZM, a social worker, and a statement and evidence from the Vienna Child and Youth Services. AZM maintains that she came to England to escape domestic abuse and to settle here with her newborn child. She lives with her own mother and brother. Her mother has lived in England for several years. The Mother says that she has visited England on many occasions and ultimately decided to settle here. She asserts:

“Since my arrival in the UK in August 2025, I have taken significant steps to settle and integrate here. I have registered with a GP, obtained maternity allowance, obtained a National Insurance number, attended maternity appointments at [redacted] Hospital, registered on the electoral roll, and registered with Property Pool Plus for housing… All medical scans and check-ups for my unborn child [AZ] have taken place in the UK.

The Court will have seen from Home Office information that I applied for pre-settled status in 2020. This is correct. I first came to the UK in or around November 2020 with my children and stayed for several months. During that time, I applied for pre-settled status and registered with the same GP I am registered with now.”

In fact, as is not disputed, AZM did not remain in England. The effect of her travels after 2020 on her application for pre-settled status is not yet known. Also, in an earlier statement she indicated that her ante-natal care had been in Romania and Austria.

The authorities in Austria have stated that:

“[AZ] does not have the Austrian Citizenship, nor has she ever lived in Austria. The mother has not lived in Vienna for an extended period and has never mentioned plans to move back to Austria. [AZM] moved to Romania in the hope that all her children will be taken from Austria by the Romanian authorities. This did not happen. When she got pregnant, she decided to move to England to live with [AZ]’s maternal grandmother. It was her plan to stay in England and to raise [AZ] with [the maternal grandmother]’s help.

At no point did she inform the Vienna Child and Youth Welfare about any long-term plan of relocating with [AZ] to Vienna. [AZM] has been known in the past to make rash decisions concerning her place of residence.”

It is difficult to take the Mother’s assertions about her intent to remain and settle in England at face value. She has clearly moved between Romania and Austria and has visited England also. She has three children in the care system in Austria and, when living in Austria, she was apparently entitled to have contact with them. But for the interim care order in this case, would she have remained in England with AZ and foregone contact with her other three children? Her immigration status in England is currently unknown. At the time of AZ’s birth, AZM had been in England living with her own mother for two months, but it is conceivable that she was intending only to obtain the benefit of maternity health services here before moving back to Romania or Austria.

At the date of issue of proceedings AZ was one day old and had not left the hospital in England where she had been born. She was cared for by her mother and hospital staff. Her maternal grandmother and uncle live in England. Her putative father was in Austria. Her parents had separated. Her mother was living in a family unit with her mother and brother in England.

I have to consider AZ’s habitual residence at one day of life when she had not yet left the hospital where she was born.

At one day old, AZ had never lived anywhere other than in England and Wales. Following the authorities reviewed in Re CB (above), I am unable to find that AZ was habitually resident in any country in which she had never lived. She was not habitually resident in Romania or Austria.

Habitual residence is an issue of fact. When considering whether a newborn baby has achieved “a degree of integration in a social and family environment in the country in question sufficient for the child to be habitually resident there” the Court has to be realistic about what factors might establish integration. Factors which might be relevant to determining the habitual residence of an adult who has moved with both parents from one country to another, or an older child who has been abducted by one parent from their home country to another state, are unlikely to be relevant to the determination of habitual residence of a one day old child. I cannot take into account AZ’s language, her schooling, or her connections to friends. It would be futile to look for stability of the kind found to be important in other cases. Duration of residence is not helpful either. Factors which may be relevant in other cases will have no relevance to a day old baby. Hence, the absence of those factors cannot weigh against a finding that AZ is habitually resident in England and Wales, the place of her birth.

The court has to look at what factors might be of relevant in this particular case. An obvious starting point is the place of birth: a hospital in England. It is of relevance that AZM planned to give birth there. She was not in transit between countries at the time. According to her most recent statement, she had ante-natal care in England She certainly chose to have her baby here.

The authorities also emphasize the importance of the habitual residence of a very young child’s primary carer, here AZM. A child’s habitual residence has to be determined at the earliest possible stage in proceedings but that may mean that not all the evidence is available. On the evidence I have, it is arguable that AZM was habitually resident in England at the date of issue of these proceedings, but also arguable that she was habitually resident in Austria or Romania. AZM had made “rash” decisions about her place of residence in the past and her residence in England may not have had the element of stability sufficient to establish her habitual residence here. She had applied for pre-settled status in England in 2020 but she had subsequently lived abroad. She clearly had links with England and her own mother and brother have lived her for some years. She has stayed here for some periods of time in recent years but she has spent more time abroad. At the relevant time she had separated from the father of her 2 year old and the putative father of AZ and had been living in England for two months. She had a home here with her mother and brother, had registered with a GP and obtained a National Insurance number. There is evidence therefore that she intended to stay. Had the interim care order not been made, it is likely that upon discharge from hospital, AZM would have taken AZ home to live with the maternal grandmother and uncle at least for some time. On the evidence before me I cannot conclude that AZM was habitually resident in England and Wales at the relevant date but she was resident here and had been for two months.

Since it is difficult to identify ways in which a newborn baby could integrate into a social or family environment, it might be tempting for the Court to conclude, as the Local Authority and Guardian submit, that AZ’s country of habitual residence cannot be established. However, whilst the 1996 Convention clearly anticipated circumstances in which a child’s habitual residence could not be established, it should surely not be commonplace for Courts to find that a newborn child’s habitual residence cannot be established. Baroness Hale discussed some of the implications of a finding that a newborn baby had no country of habitual residence at para. 56 of A v A. I am not concerned in this case with the Hague Convention 1980 but the concept of habitual residence is common to that and the 1996 Hague Convention. It is well established that it would tend to frustrate the policy of the 1980 Convention and therefore should be exceptional to conclude that a child has no country of habitual residence. That should be as true for a newborn as for any other child. There ought to be consistency of approach to the concept of habitual residence whether one is considering the 1980 Convention or the 1996 Convention.

When one considers the limited factors which could establish a degree of integration sufficient to establish habitual residence for a newborn baby, then a baby born in country A to parents whose habitual residence is in country A, will almost certainly be habitually resident themselves in that country from birth and until a significant change of circumstances. On the other hand, if the baby is born to parents who are transient at the time of birth, or if the birth in country B was unplanned and the parents have no connection with that country at all, then perhaps the newborn will not have integration in that country sufficient to establish habitual residence there. In the present case AZ’s birth in England was planned. Her mother had had antenatal care here and had been in England for two months at the relevant date. She had connections in this jurisdiction. Her maternal grandmother and maternal uncle lived here and the evidence persuades me that had she not been made the subject of an interim care order, AZM would have taken AZ to live in her maternal grandmother’s house in this jurisdiction. How long she would then have stayed in this country is difficult to predict but I am fully satisfied that at the date of the issue of these proceedings, AZ had a degree of integration in a social and family environment in this jurisdiction sufficient to establish her habitual residence here as a newborn baby.

There is no other country in which AZ could have been habitually resident at one day old. The only alternative to the finding I have made is that she had no country of habitual residence. In my judgement when one asks whether she had no country of habitual residence or whether she was habitually resident in England, there is only one answer. She was born here, her mother was living here at the time and not just on a very short term visit, the birth was planned to be here, and she was cared for by her mother and the National Health Service here. Integration of the degree sufficient to establish the habitual residence of an older child was not present, but integration of the degree sufficient to establish habitual residence of a one day old child was present.

Even if, later in these proceedings, the Court finds on the basis of new or different evidence that the Mother intended to leave England soon after AZ’s birth, AZ was still habitually resident here at one day of age.

Even if I am wrong about AZ’s habitual residence at the relevant time, the court of England and Wales would have jurisdiction under Article 6(2) because the alternative conclusion would be that no country of habitual residence had been established.

It does not at all follow from this determination of habitual residence at one day of age, that another state is not better placed to assess AZ’s best interests.