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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 >> Lancashire County Council v T & Ors (Habitual Residence: Care Proceedings)  EWHC 3321 (Fam) (08 August 2014)
Cite as:  EWHC 3321 (Fam)
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London WC2A 2LL
B e f o r e :
|Lancashire County Council||Applicant|
|- and -|
|T & Others||Respondents|
165 Fleet Street, 8th Floor, London, EC4A 2DY
Tel No: 020 7421 4046 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: firstname.lastname@example.org
(Official Shorthand Writers to the Court)
MISS KHAN appeared on behalf of the Mother.
MISS KUSHNER appeared on behalf of the Father.
MISS BOWCOCK appeared on behalf of the Guardian ad Litem.
Crown Copyright ©
Friday, 8 August 2014
MR JUSTICE MOYLAN:
mother in order to give the children a better life. He chose Ireland because of his father's links to the country. He had been considering moving there with the children "for some time".
cases referred to by the parties, namely Re A, Re KL and Re LC. In Re A, Lady Hale quoted the operative part of the judgment of the Court of Justice of the European Union in Mercredi v Chaffe  1 FLR 1293:
"The concept of 'habitual residence' … must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a member state – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that member state and for the mother's move to that state and second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that member state."
At paragraph 54 Lady Hale said:
"(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 …
(v) In my view, 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 being merely 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."
In Re KL Lady Hale refers to parental intent at paragraph 23:
"It is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child's leaving one country and going to stay in another. This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of residence."
In Re LC Lady Hale said at paragraph 63:
"The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another."