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

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

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About the author:

Geraldine is Head of LexisPSL Family. She was admitted as a solicitor in 1992 and was in practice for 15 years, most recently as a partner and head of the family team at Hart Brown, a large Surrey firm.

Geraldine writes for Butterworths Family Law Service and is a past editor of the Resolution Review. She has been published in the New Law Journal, the Law Society Gazette and the District Judges’ Bulletin as well as in the national press including the Times and the Telegraph.

When in practice she was a member of the Law Society Family and Children Panels, and an accredited Resolution Specialist with a focus on advanced financial provision and pensions. A past Resolution regional secretary and press officer, Geraldine also contributed chapters to the Resolution publications, International Aspects of Family Law (3rd Edition 2009) and The Modern Family (2012).