The Court of Appeal has provided guidance on the meaning of habitual residence in family law, a crucial factor in determining jurisdiction in legal proceedings involving children. 

Case Background 

The issue arose in a case involving a father seeking the return of his child from Zambia. The child was born in England in 2021. The family traveled to Zambia in March 2022, but the father returned to England shortly after. In May, he formally withdrew his consent for the child to remain in Zambia and applied in the English court for a return order, arguing the child’s habitual residence was in England. 

Legal Context 

Zambia is not a contracting state to the Hague Convention on Parental Responsibility and Child Protection 1996. The father contended that the English court had jurisdiction under Article 5 of the Convention or the Family Law Act 1986. The mother argued that the child was habitually resident in Zambia at the time of the proceedings and the final hearing, thus the English court did not have jurisdiction. 

Court Decision 

The initial judge decided that the relevant date to determine the child’s habitual residence was the date of the hearing and held that the child was habitually resident in Zambia due to some degree of integration there. However, the Court of Appeal overturned this decision, stating that the judge had not applied the correct principles. The correct approach involves considering all relevant factors, not just the degree of integration in one country. 

The issue of habitual residence will have to be reheard.