In Re F (A Child)  EWCA Civ 789 the court was concerned with an appeal against a finding by Coleridge J that a child was habitually resident in England and Wales at the date that the court became seised with care proceedings.
Munby P, giving the leading judgment, emphasised again the importance of considering the issue of jurisdiction at the earliest possible opportunity. A reminder is given that, particularly in the context of the issuing of care proceedings, mere presence in the jurisdiction in not sufficient for the court to make a care order. “The starting point in every such case where there is a foreign dimension is, therefore, an inquiry as to where the child is habitually resident”. (para 11 (i)).
However, as well as reminding us of the importance of conducting a habitual residence inquiry where there is an issue of jurisdiction, Munby P makes it very clear that a court should not declare a child to be habitually resident in England and Wales on an ex parte basis. Such declarations are “valueless, potentially misleading and should accordingly never be granted” (para 12 (i)).
Many of us are very familiar with the idea of obtaining an ex parte declaration that a child is habitually resident in England and Wales when a child is removed to another jurisdiction. We think that often such declarations are helpful to litigants pursuing Hague Convention 1980 applications for the return of a child in other countries, or where there is an abduction of a child to a country that is not a signatory to the 1980 Hague Convention.
In Mercredi v Chaffe, a series of declarations were made as to the child’s habitual residence shortly after the child’s removal from the jurisdiction of England and Wales, on an ex parte basis. Those declarations were considered by the Court of Appeal to be ‘unprincipled’. However perhaps they can be distinguished as the declarations of habitual residence were interlinked with the concept of the father’s rights of custody (or lack thereof) and were said to be made for the purposes of Article 15 of the Hague Convention, a concept that the Court of Appeal found problematic given that there had not even been an Article 15 request at the time that they were made.
It seems clear from Re F, that the practice of ex parte declarations of habitual residence has to stop completely.
However, Munby P does suggest that interim declarations are possible, and that if such a declaration is sought ex parte there should instead be a recital to any order along the lines of ‘upon it provisionally appearing that the child is habitually resident’. It seems that following a proper inquiry, a declaration or recital confirming habitual residence is permissible.