“The concept of habitual residence …. must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.” c. The factors listed were taken from para. [39] of the judgment in Proceedings brought by A, it being held that they were relevant to the objective and purpose set out in para. [38] of that judgment: “In addition to the physical presence of the child in a member state, other factors must be chosen which are capable of showing that that presence in not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.” d. Hence, as summarised by Lord Wilson in In re LC, (Children) (Reunite International Child Abduction Centre intervening)[2014] AC 1038 at [1], "it is clear that the test for determining whether a child was habitually resident in a place is whether there was some degree of integration by her (or him) in a social and family environment". e. Integration does not have to be full; it may occur quickly – per Lord Wilson in In re B (A Child) (Reunite International Child Abduction centre and others intervening)[2016] Ac 606 . The essential question is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for their residence to be termed habitual – Lady Hale in In re LC at [60]. f. Lord Justice Moylan noted at [49] to [53] that another relevant factor when analysing the nature and quality of the residence is its “stability” as can be seen from In re R (Children) (Reunite International intervening)[2016] AC 76 where at [16] Lord Reed held that it was, “the stability of the residence that is important, not whether it is of a permanent character … there was no requirement that the child should have been resident in the country for a particular period of time” nor was there any requirement “that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.”
“I conclude that the modern concept of a child's habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B. The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite deintegration (or, better, disengagement) from it.”
“55. So which approach accords most closely with the factual situation of the child—an approach which holds that presence is a necessary precursor to residence and thus to habitual residence or an approach which focusses on the relationship between the child and his primary carer? In my view, it is the former. It is one thing to say that a child’s integration in the place where he is at present depends on the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been. 56. However, I cannot be confident that this is acte clair for the purpose of European Union law, for several reasons. First, the Court of Justice has not so far had to consider a case such as the present, or indeed any of the examples given in para 42 above. Second, the facts are particularly stark. This child would probably not have been conceived, and certainly would not have been born and kept in Pakistan, had his mother not been held there against her will. Without that, the child would undoubtedly have become habitually resident in this country. Third, the European court would have to consider the implications for the Hague Child Abduction Convention if a child such as this, or a child born on holiday, were held to have no country of habitual residence. The whole Convention, beginning with article 3 , is predicated on there being a state where the child is habitually resident immediately before the wrongful removal or retention. Can it be the case that the Convention would not apply if the child born to an English mother while on holiday abroad were abducted from the hospital? 57. Fourth, there is judicial, expert and academic opinion in favour of the child acquiring his mother’s habitual residence in circumstances such as these. Principal amongst those judicial opinions is the conclusion reached by Lord Hughes JSC in this very case. Reunite International Child Abduction Centre, the leading non-governmental organisation specialising in advice, assistance, mediation and research in relation to international child abduction and the movement of children across international borders, have intervened in this case in support of the mother. They submitted that, while there should be no ule that a new-born child takes the habitual residence of the mother, the child’s place of birth should carry little weight where the only reason that the child has been born in a particular place is because the mother has been deprived of her autonomy to choose where to give birth. The Centre for Family Law and Practice, whose co-director has conducted some important research into child abduction, similarly submitted that a person who had used such coercion should not be enabled to deprive the *25 child of the protection of the courts of the country where he would otherwise have been born. More broadly, it has been suggested that, given the inherent vagueness of the concept, the decision in any particular case will inevitably depend on a balance between the applicable policy considerations: see Rhona Schuz, “Policy Considerations in Determining the Habitual Residence of a Child and the Relevance of Context” (2001) 11 Journal of Transnational Law and Policy 101. 58. Hence I would not feel able to dispose of this case on the basis that Haroon was not habitually resident in England and Wales on20 June 2011 without making a reference to the Court of Justice. But we can only refer a question to the court if it is necessary for us to determine the case before us. For the reasons which will appear below, it is not at present so necessary.”
“90. The sole question on this part of this case is whether the factual inquiry required is overlain by a rule which prevents a person from being habitually resident in a place where he has not yet set foot. I see no occasion for any such rule. There is, I entirely agree, also no “rule” automatically ascribing habitual residence by dependence to a place to which the child has never been. There is a factual inquiry into the integration of the family unit to which he or she belongs, and that may well yield the conclusion that the child shares the habitual residence of that unit even if he has not yet achieved physical presence there, especially if he is being prevented by coercion or other force majeure from doing so. The decision of the Court of Appeal in this case involves a rule or general proposition because it necessarily excludes habitual residence without some past physical presence. The contrary approach, which to my mind is correct, involves no rule or generality at all, save for the advice to look, in the case of an infant, at the position of the family unit of which he is part. This does not involve a rule for dependent habitual residence. It merely asserts the possibility that habitual residence may exist in a state which is the home of the family unit of which the infant is part, and is where he would be but for force majeure.”
“Article 8(1) of Council Regulation (EC) No 2201/2003 of27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted to the effect that a child must have been physically present in a Member State in order to be regarded as habitually resident in that Member State, for the purposes of that provision. Circumstances such as those in the main proceedings, assuming that they are proven, that is to say, first, the fact that the father’s coercion of the mother had the effect of her giving birth to their child in a third country where she has resided with that child ever since, and, secondly, the breach of the mother’s or the child’s rights, do not have any bearing in that regard.”
“1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”
“A young infant cannot gain habitual residence in a state where he was not born and which he has not visited and has been living with his primary carer elsewhere since birth. A child cannot be habitually resident in a country in which he has never been present;”