Supreme Court hands down judgment in same-sex habitual residence case

The Supreme Court has handed down its judgment in In the matter of B (a child) [2016] UKSC 4 (on appeal from [2015] EWCA Civ 886). The judgment is available here.

The Supreme Court allowed the appeal on the appellant’s application under the Children Act 1989 (ChA 1989) by a majority of three to two (with Lord Clarke and Lord Sumption dissenting) on the basis that the child (B) remained habitually resident in England on 13 February 2014. Lord Wilson gave the lead judgment.

For the background to the case see paras [2] to [26] of the judgment.

Habitual residence

Lord Wilson (with whom Lady Hale and Lord Toulson agreed) observed that two consequences flow from the modern international primacy of the concept of a child’s habitual residence:

  • first, it is not in the interests of children to be routinely left without a habitual residence (see para [30]); and
  • second, the English courts’ interpretation of the concept of habitual residence should be consonant with its international interpretation (see para [31])

He added that the present case, however, involved a third aspect of the concept of habitual residence: the circumstances in which a child loses his or her habitual residence (para [32]). The traditional English law approach to this issue is heavily dependent upon parental intention. In particular, in In re J (A Minor) [1990] 2 AC 562, Lord Brandon observed that a person may cease to be habitually resident in a country in a single day if he or she leaves it with a settled intention not to return and settle elsewhere (paras [33-34]).

Lord Wilson noted that the Supreme Court in A v A (Children: Habitual Residence) [2013] UKSC 60 held that the English concept of habitual residence should be governed by the criterion set out in the Court of Justice of the European Union (CJEU) jurisprudence: namely, that there be some degree of integration by the child in a social and family environment. This focuses on the child’s situation, with parental intention being merely one relevant factor (see paras [35-38]).

Lord Wilson identified two points in the CJEU jurisprudence relevant to the issue of when habitual residence is lost:

  • the effect of Brussels II bis, recital 12 is that, where the interpretation of the concept of habitual residence can reasonably follow two paths, the courts should follow the path perceived better to serve the interests of children; and
  • the CJEU has indorsed the view that, although it is conceivable that a child may have no habitual residence, this will only be in exceptional cases

Lord Wilson concluded that the modern concept of a child’s habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be left without a habitual residence; the concept operates in the expectation that, when a child gains a new habitual residence, he or she loses their old one. Lord Brandon’s observation in In Re J should no longer be regarded as correct, and in the instant case Hogg J fell into error in being guided by it (see paras [45-47]).

Lord Wilson therefore stated that the correct question is whether B had, by 13 February 2014, achieved the requisite degree of disengagement from her English environment and concluded that, taken cumulatively, the factors pointing to the conclusion that B had not by 13 February 2014 achieved the requisite degree of disengagement compelled the conclusion that she retained habitual residence in England. Accordingly, the appellant’s application under ChA 1989 Act could and should proceed to substantive determination by the High Court (Family Division) (see para [51]).

Lord Sumption (dissenting) considered that Hogg J had made no error of law and, having heard and reviewed the evidence, was entitled to find that B had lost her habitual residence in England on 3 February 2014 (paras [64-80]). Lord Clarke agreed (paras [89-95]).

Inherent jurisdiction

Given the majority’s conclusion on habitual residence, it was unnecessary to decide whether the inherent jurisdiction could be exercised, however Lady Hale and Lord Toulson observed that none of the reasons for caution when deciding whether to exercise the inherent jurisdiction had much force in this case. They considered that the jurisdiction is not confined to exceptional circumstances; it could have been exercised if the court held that B required protection (see paras [59-62]).

Lord Wilson agreed, but left open the question of whether it would have been appropriate to exercise the inherent jurisdiction in this case (para [53]).

Lord Sumption (dissenting) considered that, unless the inherent jurisdiction is reserved for exceptional cases, it may be exercised in a manner that cuts across the statutory scheme, and that the jurisdiction could not have been exercised in this case (paras [81-87]). Lord Clarke, noting that the jurisdiction must be exercised with great caution, agreed that it should not be used on the facts of this case (paras [96-97]).

Geraldine Morris is a solicitor and Head of LexisPSL Family.

Twitter: @GeraldineMorris

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