Sir James Munby P, sitting in the Court of Appeal, in Re F (A Child)  EWCA Civ 789, has set out some basic propositions that apply in relation to the determination of habitual residence in cases involving children. Whilst they were stated in the context of the application of Council Regulation 2201/2203 (known as Brussels II revised (BIIR)), they are of wider application and it suggested that (with one exception highlighted below) the core procedural aspects apply equally to the determination of habitual residence by the Court of Protection:
i) Where BIIR applies, the courts of England and Wales do not have jurisdiction merely because the child is present within England and Wales. The basic principle, set out in Article 8(1), is that jurisdiction under BIIR is dependent upon habitual residence. It is well established by both European and domestic case-law that BIIR applies to care proceedings. It follows that the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. 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.
iii) Jurisdiction under Article 8(1) depends upon where the child is habitually resident ‘at the time the court is seised.’ [note, in cases under Schedule 3 to the MCA 2005, jurisdiction under the MCA 2005 depends upon where the individual is habitually resident at the point when the court determines the question of habitual residence: Re PO; JO v GO  EWHC 3932 (COP) at paragraph 21]
iv) Since the point goes to jurisdiction it is imperative that the issue is addressed at the outset. In every care case with a foreign dimension jurisdiction must be considered at the earliest opportunity, that is, when the proceedings are issued and at the Case Management Hearing: see Nottingham City Council v LM and others  EWCA Civ 152, paras 47, 58.
v) Good practice requires that in every care case with a foreign dimension the court sets out explicitly, both in its judgment and in its order, the basis upon which, in accordance with the relevant provisions of BIIR, it has either accepted or rejected jurisdiction. This is necessary to demonstrate that the court has actually addressed the issue and to identify, so there is no room for argument, the precise basis upon which the court has proceeded: see Re E, paras 35, 36.
vi) Judges must be astute to raise the issue of jurisdiction even if it has been overlooked by the parties: Re E, para 36.
There is a further point to which it is convenient to draw attention. If it is, as it is, imperative that the issue of jurisdiction is addressed at the outset of the proceedings, it is also imperative that it is dealt with in a procedurally appropriate manner:
i) The form of the order is important. While it is now possible to make an interim declaration, a declaration made on a ‘without notice’ application is valueless, potentially misleading and should accordingly never be granted: see St George’s Healthcare NHS Trust v S, R v Collins and Others ex p S  Fam 26. If it is necessary to address the issue before there has been time for proper investigation and determination, the order should contain a recital along the lines of ‘Upon it provisionally appearing that the child is habitually resident …’ Once the matter has been finally determined the order can contain either a declaration (‘It is declared that …’) or a recital (‘Upon the court being satisfied that …’) as to the child’s habitual residence.
ii) The court cannot come to any final determination as to habitual residence until a proper opportunity has been given to all relevant parties to adduce evidence and make submissions. If they choose not to avail themselves of the opportunity then that, of course, is a matter for them, though it is important to bear in mind that a declaration cannot be made by default, concession or agreement, but only if the court is satisfied by evidence: see Wallersteiner v Moir  1 WLR 991.”
[A version of this note appeared in the July 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]