Re P

It is the pivot of the whole head on children. For status the connecting factor is domicile; for the protection of a child it is ordinary residence. This is the case that made the switch, and it is approved in India.

A six-year-old boy was taken by his father from England to Israel. He had been physically absent from England for two years.

Jurisdiction was assumed on ordinary residence: the child was held ordinarily resident in England although physically absent for two years. Domicile does not found the jurisdiction — the English domicile of a minor by itself is not sufficient to confer jurisdiction, and neither is the presence of property.

Step one — the source of the power. The court's power over infants is the Crown's parens patriae prerogative, to do what is necessary for the welfare of its minor subjects, exercised by the courts from time immemorial and supplemented by statute.

Step two — the reach of the power. It is wide: the court may appoint a guardian to a minor resident abroad and may restrain the removal of an infant, whatever his domicile or nationality — with the one limitation that the court is not competent to pass orders relating to a minor unless the minor is personally subject to its jurisdiction.

Step three — why not domicile. Lord Denning's reason is that the tests of domicile are far too unsatisfactory, requiring the application of a great many archaic rules. Russell L.J.'s ground is cleaner: the parental jurisdiction rests on allegiance, and domicile is an artificial notion which may involve no connection with allegiance at all.

Step four — the resulting rule. For an alien minor the court has jurisdiction if, at the time of the proceeding, he is either physically present though not domiciled, or ordinarily resident though not in fact present. And for a child too young to choose, ordinary residence is the matrimonial home of the parents if they live together, and the home where he normally lives if they do not.

It opens: On what basis does a court take jurisdiction over a child?

Give the Indian statute in the same breath. Section 9(1) of the Guardians and Wards Act, 1890 fixes jurisdiction in an application for guardianship of the person of a minor at the District Court having jurisdiction in the place where the minor ordinarily resides. Indian statutory law and English case law reach the same connecting factor by different routes, and for the same reason: a child's protection must follow the child's actual life, and domicile is a rule about adults' intentions.

Then give the Indian foundation case. Marggarate Pulparampil approved Re P, rejected domicile as a jurisdictional ground and held the children's ordinary residence in Germany sufficient to give the German court jurisdiction, even assuming the father's Indian domicile gave them an Indian domicile of origin.

It does not decide the merits; jurisdiction founded on ordinary residence still leaves welfare to be decided, on McKee v. McKee, Re R, Marggarate and Surya Vadanan.