High Court of Justice (England and Wales), Family Division

High Court of Justice (England and Wales), Family Division

United Kingdom - England and Wales

30 July 2015

London Borough of Sutton v AH (Mother), TT (Father), NH (Child, by his Guardian, Clare Brooks) (Reported as: Re NH (1996 Child Protection Convention: Habitual Residence))

[2015] EWHC 2299 (Fam)

First instance

Article 6(2)

• Article 5
• Article 8
• Article 9
• Article 11
• Article 13 and Article 33

Children Act 1989

Not provided

The case concerned a 15-year-old dual Canadian and Zimbabwean national who had lived an unusually unsettled life across several countries, including South Africa, Canada, Switzerland, Germany and Zimbabwe. Following the expiry of his Swiss residence status and his departure from Switzerland, proceedings were commenced in England after allegations of assault by his mother and his placement in foster care. The principal issue was whether the English court possessed substantive jurisdiction under the 1996 Hague Convention. After analysing the child's circumstances, including his immigration status, educational history, social integration and intentions regarding future residence, the court concluded that it was impossible to establish any habitual residence. The court therefore relied on Article 6(2), holding that where a child's habitual residence cannot be established, jurisdiction lies with the authorities of the Contracting State in which the child is present. The decision provides important guidance on the operation of Article 6(2) and on the concept of habitual residence under the Convention.

The High Court held that NH's habitual residence could not be established. Accordingly, jurisdiction arose under Article 6(2) of the 1996 Hague Convention on the basis of the child's presence in England. The court therefore had substantive jurisdiction to determine welfare proceedings concerning the child.

Not provided