Court Report: Judgment on dual habitual residence

Case name L (A Child)
Case number [2012] EWCA Civ 1157
Judge Thorpe LJ, Munby LJ, Sedley, LJ
Location Court of Appeal 

In this case, the court issued a judgment regarding dual habitual residence and the application of Brussels IIR, a European Union regulation that applies to the wrongful removal of children between EU member states.

L was born in 2011 to a Portuguese father and an English mother. The family lived in Portugal, until November 2011 when the mother attempted to secretly remove L from the country. After a police intervention, the parties entered into an agreement under Brussels IIR in which L would alternate between the care of his father in Portugal and his mother in England every two months.

In February 2012, L’s mother applied to the English Oxford County Court for prohibited steps and residence orders. The judge held that it was in L’s best interest to conduct proceedings in England given his mother’s state of distress (article 23(a)), and affirmed jurisdiction on the basis that L’s frequent shifts between Portugal and England made him a habitual resident in both.

L’s father appealed, arguing that L did not have habitual residence in both countries, and that article 23(a) did not apply in the case. The Court of Appeal allowed his appeal, noting that Article 23(a) sets the bar “very high” and was not met by the facts of the case. Furthermore, the court held that a person can only have one habitual residence and determined that L’s must be Portugal as his bi-monthly presence in England was insufficient.