Re A (Children) [2013] UKSC 60

Mental capacity – residence

Summary and comment

We make short note of this case, relating to whether the High Court of England and Wales has jurisdiction to order the ‘return’ to this country of a small child who has never lived or even been here, on the basis either that he is habitually resident here or that he has British nationality, because of the discussion of the approach to be adopted to the determination of habitual residence.   This approach is of relevance both in respect of the international jurisdiction of the Court of Protection and also, potentially, to considerations of the determination of ordinary residence in the context of adults without the capacity to decide upon questions of residence.

At paragraph 56, after a detailed discussion of the authorities relating to habitual residence,  Lady Hale (for the majority), held thus:

“Drawing the threads together, therefore:

  1. All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
  2. It was the purpose of the [Family Law Act 1986] to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation  [Regulation 2201/2003] must also be interpreted consistently with those Conventions.
  3. 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.
  4. It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.
  5. 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. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.
  6. 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.
  7. The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
  8. As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.”

It is anticipated that the approach to be adopted to the construction of the phrase ‘habitual residence’ for purposes of Schedule 3 to the MCA 2005 is to be the subject of a judgment in short order, and we do not touch upon that question further here.  

For wider purposes, we might suggest that  Re A makes even clearer than does the decision of Beatson J in R(Cornwall Council) v SoS for Health & Ors [2012] EWHC 3379 (Admin) that Barnet LBC v Shah [1983] AC 309  is not a decision that is applicable to the determination of ordinary residence of adults without capacity to decide questions of residence. 

The key concepts  in Lord Scarman’s definition in Shah were that the residence must be “voluntarily” adopted and that it must be for “settled purposes.”   Cornwall was a case concerned with the ordinary residence of an incapacitated adult, and hence with the two ‘tests’ set down in  R v Waltham Forest LBC,  ex  p. Vale.   Those two tests (which were not, in fact, stated to be such by Taylor J, but have been adopted in subsequent guidance), provide either for (1) the position where a person is so severely handicapped as to be totally dependent upon a parent or guardian, such that they are in the same position as a small child and her ordinary residence is that of her parents or guardian  “because that is her base;” or (2) an approach which considers all the facts of a person's case should be considered, including physical presence in a particular place and the nature and purpose of that presence as outlined in  Shah, but without requiring the person themselves to have adopted the residence voluntarily.

In Cornwall, Beatson J noted in relation to Shah (at paragraph 68) that a “test which accords a central role to the intention of the person whose ‘ordinary residence’ is to be determined cannot be applied without adaptation when considering the position of a person who does not have the capacity to decide where to live.”

In Re A, Lady Hale noted at paragraph 38 that “the reference  [in  Shah]  to adopting an abode ‘voluntarily and for settled purposes’ is not readily applicable to a child, who usually has little choice about where he lives and no settled purpose, other than survival, in living there. If this test is adopted, the focus inevitably shifts from the actual situation of the child to the intentions of his parents.” 

Whilst Lady Hale’s dicta are, strictly, obiter, we would suggest that they are applicable with equal force to considerations of ordinary residence of adults without the capacity to decide where they wish to live.   We would further, and respectfully, suggest that to the extent that they require an intense focus on the factual situation of the adult, they  are undoubtedly correct.   They therefore, we would also suggest,  reinforce our earlier suggestion that it was unfortunate that in Cornwall  “Beatson J did not pick up the gauntlet laid down by Cornwall and did not consider in any detail how Vale now reads in light of the passage of the MCA 2005. Whilst “test 1” in  Vale undoubtedly serves a pragmatic purpose, viewed in the abstract it does not sit very easily with the principle of autonomy enshrined in the MCA.   In its direct equation of the position of an incapacitated adult with that of a small child, it also stands at odds with the clear thrust of COP case-law, which is to the effect that the two can and should be treated as conceptually distinct… “Test 2,” by contrast, does not give rise to the same problems.”  It may be that in due course the gauntlet is picked up again by another local authority or service user, in which case Re A would no doubt be prayed in aid.