fbpx

High Court Ponders Habitual Residence Test in Case of Orphaned Schoolgirl

7th June 2021 By

The legal concept of habitual residence is a notoriously slippery one, but the ease of global travel has rendered it ever more important in the field of family law. The point was powerfully made by the case of an orphaned schoolgirl who was born in Britain but whom a US citizen was desperate to adopt.

The girl was aged three when her mother died. Her father had no relationship with her mother and had no parental responsibility for her. A US citizen who had for six years grown up in the same household as the mother, and who viewed her as a sister, wished to adopt the child.

However, a legal hurdle stood in the way of her achieving that ambition in that the English courts would only have jurisdiction to authorise the child’s adoption overseas if she remained habitually resident in England and Wales. That issue was considered at a preliminary hearing.

Ruling on the matter, the High Court noted that the prospective adopter had been granted judicial permission to take the child to live with her in America for six months. That permission had since been extended more than once and the child had been based in America for over 18 months.

The prospective adopter had initially returned with the child to Britain every three months in order to renew her US visa. The COVID-19 pandemic had, however, made such trips impossible and the current position was that the child’s visa had expired and her presence in America was unauthorised.

The Court noted that jurisdictional rules in family cases have to be shaped in the light of the best interests of the children concerned. The question was whether the child had attained a sufficient degree of integration into the social and family environment of America to render her habitually resident there, rather than in the country of her birth. She had made friends in America, attended school there and had formed a close bond with the prospective adopter.

Ruling that she remained habitually resident in England and Wales, however, the Court emphasised that the critical factor was the stability of her residence in America, rather than its permanence. Her immigration status in America was precarious and the prospective adopter only had temporary permission from the English courts to keep her there. She would commit a criminal offence if she kept the child overseas without the authority of a court order.

The Court’s ruling on the jurisdictional issue opened the way for an application to be made for the child’s adoption under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 19 May 1993. Such an application would not be free from technical difficulties, but it provided a route whereby the child’s need for stability, security and permanence could be achieved.

Source: Concious

Latest News

Court Sanctions Leg Amputation for Man Lacking Mental Capacity

24th April, 2024 By

The courts are often called upon to sanction treatment for patients whose ability to make decisions for themselves is impaired. In a recent case on point, the Court of Protection had to decide whether it was in the best interests of a man with mental health issues to have his right leg amputated above the knee. The man, aged 60, was taken to hospital by his niece. He was found to have an ulcerated leg. He had a history of paranoid schizophrenia, and believed that the sores on his leg...

High Court Grants Parental Order Despite Previous Adoption

18th April, 2024 By

In law, adopted children are regarded as having been born to their adoptive parents. The Family Division of the High Court recently considered whether that fact precluded a parental order being granted under the Human Fertilisation and Embryology Act 2008 (HFEA) in respect of a child born via surrogacy. A couple who lived in the USA had entered into a surrogacy arrangement with another woman. An adoption order naming the couple as the child's parents had been made by a US court and was automatically recognised under UK law. However,...

Flat Owner Not Liable for Pre-existing Structural Issues

16th April, 2024 By

When building owners carry out works on their property, are they liable for damage to adjoining properties that results from pre-existing structural issues? The Court of Appeal recently provided welcome clarification on that question. The owner of a ground-floor flat wished to extend it by building out into his garden. He served notices on owners of adjoining properties, as required by the Party Wall etc. Act 1996. The works caused the rear wall of two adjoining properties to drop by about 2 mm, which led to internal walls and floor...

Challenge to Will's Validity Rejected by High Court

12th April, 2024 By

The best way to ensure your assets will be distributed as you wish is to have your will professionally drafted by a qualified solicitor. In a recent case, a challenge to the validity of an elderly man's will was dismissed by the High Court. The man had previously made a will in 2011, leaving most of his estate equally to his three children. In 2018, by which time one of his sons had predeceased him, he made a further will, leaving the residue of his estate to his other son...