Summary
The proceedings, which were initiated in September 2012, were in relation to a 7.5-year child, M.
The child’s parents were Nigerians, living in Nigeria.
The child was born in England in March 2005.
In August 2007, the parents placed him in the care of the maternal uncle and his wife who were both living in England.
On 3rd September 2012, the mother removed the child from the jurisdiction, without the consent of the carers, the uncle and the aunt. The uncle and the aunt applied to country court, seeking a residence order and the return of the child.
The residence order was granted. Also, the parents were required to return the child to England.
The matter was transferred to the High Court. The question was whether the English court had jurisdiction. In this context, the habitual residence of the child had to be determined. After considering the facts, the English court assumed jurisdiction. Mr Justice Jackson held:
“ 28 […]the determination of issues of habitual residence is therefore a question of fact. The assessment must survey facts of all kinds. Some will consist of events, some will arise from less tangible things such as feelings, relationships and intentions, and others will concern legal rights and wrongs. As to the last, whether something is legal or not is a fact. But unless there is a specific mandate for doing so, the overall assessment does not give automatic precedence to one kind of fact over another. In particular, there may be circumstances in which habitual residence can be lost following an unlawful removal (for example, with the passage of time), and circumstances in which it will not be lost following a removal that is technically lawful (for example, removal by a parent with sole parental responsibility who has no actual relationship with the child).” [28]