Child was habitually resident in England and Wales at one day old, High Court rules

In Wirral Metropolitan Borough Council v AZM & Anor [2025] EWHC 3366 (Fam), Mr Justice Poole concluded: “There is no other country in which AZ could have been habitually resident at one day old. The only alternative to the finding I have made is that she had no country of habitual residence.

“In my judgement when one asks whether she had no country of habitual residence or whether she was habitually resident in England, there is only one answer. She was born here, her mother was living here at the time and not just on a very short-term visit, the birth was planned to be here, and she was cared for by her mother and the National Health Service here. Integration of the degree sufficient to establish the habitual residence of an older child was not present, but integration of the degree sufficient to establish habitual residence of a one-day old child was present.”

The case concerned AZ, who was born in a hospital in England in October 2025.

Her mother, AZM, is a Romanian national who has spent much of adult life in Austria as well as in Romania.

AZM has three other children, all of whom are in the care of the authorities in Austria. AZ’s putative father is the father of the 2-year-old.

The family’s history in Austria became known to the local authority which made an application for an interim care order on day one of AZ’s life.

The judge noted: “The short preliminary issue which I have decided should be determined at this stage is that of AZ’s habitual residence. The Hague Convention 1996 determines jurisdiction in this case. The UK, Austria, and Romania are all contracting states.”

He added: “The time at which habitual residence is to be assessed is upon the issue of these proceedings. In principle it is open to the court to find that AZ was habitually resident in this jurisdiction in which case the courts of England and Wales have jurisdiction over her welfare (Art 5) or that her habitual residence cannot be established in which case the courts of England and Wales have jurisdiction whilst she is present here (Article 6(2)).

“In either event, a request can be made to the authorities in another contracting state with which AZ has a substantial connection for it to assume jurisdiction for protection of her welfare (Art 8).”

At the date of issue of proceedings, AZ was one day old and had not left the hospital in England where she had been born. She was being cared for by her mother and hospital staff.

The local authority’s position was that at the relevant date, the child had not acquired habitual residence in this jurisdiction but that in any event Austria, alternatively Romania, would be “better placed” to take steps to protect her welfare.

Outlining the legal framework, the judge acknowledged it is now “firmly established” that the date on which habitual residence is to be determined is the date of the issue of proceedings, which in this case was at one day of life.

Analysing the case, the judge said: “Habitual residence is an issue of fact. When considering whether a newborn baby has achieved “a degree of integration in a social and family environment in the country in question sufficient for the child to be habitually resident there”, the Court has to be realistic about what factors might establish integration.

“[…] I cannot take into account AZ’s language, her schooling, or her connections to friends. It would be futile to look for stability of the kind found to be important in other cases. Duration of residence is not helpful either. Factors which may be relevant in other cases will have no relevance to a day-old baby. Hence, the absence of those factors cannot weigh against a finding that AZ is habitually resident in England and Wales, the place of her birth.”

He continued: “When one considers the limited factors which could establish a degree of integration sufficient to establish habitual residence for a newborn baby, then a baby born in country A to parents whose habitual residence is in country A, will almost certainly be habitually resident themselves in that country from birth and until a significant change of circumstances.

“On the other hand, if the baby is born to parents who are transient at the time of birth, or if the birth in country B was unplanned and the parents have no connection with that country at all, then perhaps the newborn will not have integration in that country sufficient to establish habitual residence there.

“In the present case AZ’s birth in England was planned. Her mother had had antenatal care here and had been in England for two months at the relevant date. She had connections in this jurisdiction. […] How long she would then have stayed in this country is difficult to predict but I am fully satisfied that at the date of the issue of these proceedings, AZ had a degree of integration in a social and family environment in this jurisdiction sufficient to establish her habitual residence here as a newborn baby.”

Concluding the case, Mr Justice Poole found there was no other country in which AZ could have been habitually resident at one day old.

He said: “The only alternative to the finding I have made is that she had no country of habitual residence. In my judgement when one asks whether she had no country of habitual residence or whether she was habitually resident in England, there is only one answer. She was born here, her mother was living here at the time and not just on a very short-term visit, the birth was planned to be here, and she was cared for by her mother and the National Health Service here. Integration of the degree sufficient to establish the habitual residence of an older child was not present, but integration of the degree sufficient to establish habitual residence of a one-day old child was present.

“Even if, later in these proceedings, the Court finds on the basis of new or different evidence that the Mother intended to leave England soon after AZ’s birth, AZ was still habitually resident here at one day of age.

“Even if I am wrong about AZ’s habitual residence at the relevant time, the court of England and Wales would have jurisdiction under Article 6(2) because the alternative conclusion would be that no country of habitual residence had been established.”

Finally, he acknowledged that it does not follow from the determination of habitual residence at one day of age, that another state is not better placed to assess AZ’s best interests.

Lottie Winson