Cambridge Family Law Practice

The mother of a three month old baby should be allowed to return to Paris, the High Court has ruled, despite England being the habitual residence of her son.

The boy’s mother was French and his father English. She became pregnant during a brief relationship. Although she lived and worked in France, the mother decided to give birth in England to allow the father to be fully involved, but she had no plans to stay long term as her relationship with the father was rocky. The former couple had a number of bitter arguments in the run-up to the birth, reportedly including one in which the father became enraged by the suggestion that the mother’s surname should be on the birth certificate.

She moved into temporary accommodation. When the baby turned ten weeks old, the father began to worry the mother was planning to return to France with his son, referred to in court as ‘Joe’. He applied for a child arrangements order, determining which parent the boy should live with on a day-to-day basis, along with a prohibited steps order. He explained that:

“I am making this application to prevent my son from being taken abroad without my consent, as he will most likely never be returned to the UK. I have not seen my son for five days now, prior to which he was living with me, and I was with him every day since his birth. My son’s mother is refusing to communicate with a third party family member to arrange child care.”

He added:

“My son’s mother is a French national, and as far as I know she has no visa to remain in the UK. I am afraid that my child will be removed from the jurisdiction of England and Wales without my consent.”

The prohibited steps order was granted on a ‘without notice’ basis. As the name suggests, prohibited steps orders forbid the subject from taking certain actions – in this case, taking the baby from the UK into France. Without notice orders are issued on a temporary basis, and as the name suggests, without prior notice being given to the subject. Typically, courts make such orders when a situation is considered urgent.

The order was issued on the basis that Joe was ‘habitually resident’ in England, meaning that this country was his usual place of residence. This distinction is given particular weight in multi-country family disputes – in particular those involving the removal of children from one country into another without the permission of the other parent.

A further hearing was then scheduled, in order to review the prohibited steps order and allow the mother to make her case, and this was subsequently transferred to the High Court. There, Mr Recorder Howe KC considered the mother’s case that since the baby was, naturally, entirely dependent on her, her own habitual residence – France – should be the decisive factor. But the KC disagreed, declaring that, while the mother’s habitual residence was France, their son’s physical presence in Britain had to be the basis of his own habitual residence. As things stood, the child had no relationships with anyone in France or other connections to the country.

He explained:

“In my judgment…[a] submission [made by the father’s lawyer] that physical presence of a child in a country must be the starting point is persuasive…Joe has had no residence in France, let alone any period of stable residence there. He has no integration with any family, friends or services in France. The only residence he has known is in England.”

Mr Recorder Howe KC continued:

“I have found that mother had no intention to remain in England, but father is named on Joe’s birth certificate, and I can discern no reason why mother’s intentions concerning her own place of residence should be seen to trump the intentions of father [to continue living in England].”

Nevertheless, he also concluded that the French courts were the appropriate forum for the continuation of the case and that future hearings concerning the baby’s welfare should be held there. The Judge therefore discharged the prohibited steps order, declaring:

“The welfare considerations really come down to whether, or not, it is in Joe’s interests to have his mother deprived of her home and her employment and all the stability that brings for her and to Joe. In my judgement, keeping the mother in this jurisdiction where she feels she has been kept captive by the making of the prohibited steps order is not in Joe’s interests. The father is able to seek assistance with establishing a relationship with Joe in the courts in France. I recognise that is not ideal, but in my judgement the mother has to return to France, and Joe should go with her, given his primary bond with his mother.”

He concluded:

“I recognise that my decision will come as a blow to the father… I accept that he is delighted to be a father and wants to be part of Joe’s life. In my judgement, the father will need to pursue an application, if contact cannot be agreed, in France as when Joe leaves this jurisdiction, and has a physical presence in France, in my judgement his habitual residence will change to France, because his mother’s connections are all there.”

Read the judgement here.