Habitual residence and nationality in Family Law

The Supreme Court on 9 September 2013 handed down judgment in a case concerning a child and the issues of jurisdiction.

The case called  re A (children) was about wardship and child abduction.  The Supreme Court gave guidance in relation to habitual residence and this also has wider significance.

Habitual residence often raises its head in family law cases, for example, in relation to divorce, children or some other family law context.

As a result of this decision, where there is a case concerning a child and issues of jurisdiction then it may now be possible to argue in favour of the nationality-based jurisdiction rather than jurisdiction based on habitual residence or physical presence.

The most significant point for family law cases is that there is a single test for habitual residence in relation to child cases.  The correct test is the European one; and European case law seeks to identify “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned.

If a child is not habitually resident in England and Wales or any other member state then the EU regulations permit the use of other bases of jurisdiction within national law.  There remains in existence under the national law of England and Wales a “nationality” based jurisdiction that applies to British nationals within the inherent jurisdiction of the court or wardship proceedings, regardless of habitual residence or physical whereabouts.  This jurisdiction can be exercised in exceptional circumstances, where the EU regulation is engaged, unless that jurisdiction is excluded by law.

In this present case of Re A, the possibility of a “nationality” based jurisdiction had not be raised before the High Court; and the case has therefore be returned to the High Court to consider whether the case justifies the exercise of the nationality jurisdiction; and also the father’s application to stay /put on hold the English proceedings on the grounds that another jurisdiction is better able to deal with the case.

It will be interesting to see whether or not the High Court does indeed justify the exercise of the nationality based jurisdiction.

James Maguire & Co is a specialist firm of Family Law and Divorce Law solicitors based in Wilmslow, Cheshire. We offer legal advice to parties going through a divorce including the financial issues which flow from this and children matters including child maintenance.

We can also advise on Schedule1 Children Act 1989 applications.

We advise clients in the Wilmslow area and also to the surrounding areas of Alderley Edge, Bramhall, Hale, Altrincham, Manchester and the North West. We are also able to act for clients nationally and internationally subject to the jurisdiction of England and Wales. For advice please contact James Maguire by telephone +44 (0) 1625 529456 or by email james.maguire@family-law.