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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A v B  EWHC 1562 (Fam) (3 June 2015)
Cite as:  EWHC 1562 (Fam)
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Strand, London, WC2A 2LL
Draft delivered on 26 May 2015
B e f o r e :
|- and -
Andrew Norton and Marlene Cayoun (instructed by Philcox Gray, Solictors) for the Respondent, father
Hearing dates: 19 21 May 2015
Crown Copyright ©
Mrs Justice Pauffley :
Law relating to 'habitual residence'
(i) habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
(ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted by the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.
(iii) The test adopted by the European Court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question
(iv) . the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents merely being one of the relevant factors
(vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
(vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
(viii) ... it is possible that a child may have no country of habitual residence at a particular point in time."
The genesis and content of the arrangement between the adults
Additional material relating to intentions and integration arrangements before and after D's birth
Developments after D's arrival in England
Overall conclusion in relation to habitual residence
Article 13b 'consent'
Exercise of discretion