B (A child), Re

Factual and Procedural Background

The appeal concerns a child referred to in the judgment as “B.” The underlying proceedings relate to questions of the child’s habitual residence and the English court’s jurisdiction to make welfare-based orders. The case reached the Supreme Court after a decision of Judge Hogg at first instance was upheld by the Court of Appeal ([2015] EWCA Civ 886). The Supreme Court heard the matter on 8–9 December 2015 and delivered judgment on 3 February 2016.

Legal Issues Presented

1. Whether, on the evidence, the child “B” had an habitual residence and, if not, how Article 13 of the Brussels II bis Regulation should be interpreted in circumstances where a child has no habitual residence.
2. Whether the inherent jurisdiction of the High Court should be invoked to order the physical return of the child to England so that the court could then exercise its statutory welfare jurisdiction.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Supreme Court held that Article 13 contemplates the exceptional possibility that a child may be without any habitual residence. In such circumstances, the regulation’s reference to a habitual residence “which cannot be established” refers to the absence of one, not merely the court’s inability to identify it.

Judge Sumption’s analysis, with which the majority agreed, accepted Judge Hogg’s factual findings and legal approach. The Court of Appeal was therefore correct in dismissing the earlier appeal, and no error of law or fact had been demonstrated.

Regarding the inherent jurisdiction, Judge Hale and Judge Toulson stressed that its use must be approached with “great caution and circumspection.” The majority accepted that principle but concluded that, on these facts, it would be inappropriate to invoke the inherent jurisdiction to compel B’s return solely to found statutory jurisdiction that would not otherwise exist. The judgment leaves open the possibility that, in a different factual matrix, the court might consider the child’s welfare more broadly without first requiring a physical return.

Holding and Implications

APPEAL DISMISSED.

The Supreme Court affirmed the decisions of both Judge Hogg and the Court of Appeal. The immediate consequence is that no order will be made to return the child to the jurisdiction under the court’s inherent powers. The judgment emphasises the narrow circumstances in which a child may be regarded as having no habitual residence and cautions against expansive use of the inherent jurisdiction, but it sets no new binding precedent beyond the specific confirmation of those principles.