High Court Ponders Habitual Residence Test in Case of Orphaned Schoolgirl

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.