There does not exists a statutory definition for habitual residence. Instead, the test for what qualifies as ‘habitual residence’ has been set out in two European cases, both of which were later confirmed in English law by the Supreme Court case A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and other intervening). In this case, Baroness Hale held that habitual residence ‘corresponds to the place which reflects some degree of integration by the child in a social and family environment’.
The country in which the child is habitually resident will have jurisdiction to deal with matters in relation to the child. This is established by the 1996 Hague Convention (to which the UK is a Contracting State). Article 5 of this Convention states that the Contracting State in which the child has habitual residence has jurisdiction.
Habitual residence is also significant post-Brexit. This is because perpetuatio fori - the concept that jurisdiction (once determined) will stay with that court for the whole duration of the proceedings, even if the circumstances may change - no longer applies. Without this (bar in the event of abduction proceedings), the court will lose jurisdiction if the child’s habitual residence changes during proceedings. Article 13 of the 1996 Hague Convention appears to confirm this position, meaning that arguably the English court should decline jurisdiction in favour of the new Convention State should the child be moved there during proceedings.
Another consideration is that The Private International Law (Implementation of Agreements) Bill 2019-21, states that the 1996 Hague Convention is to have the force of law. This means that the judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures for the protection of the child’s person or property.
Habitual residence can be changed by a parent’s unilateral actions, but it is important to note that recent case law has now made it harder for a child to be found to have no habitual residence, or for it to be terminated by a parent’s unilateral actions.
In the case Re R, the Supreme Court made it clear that when determining habitual residence, the focus should be on the factual situation of the child, with the intentions of the parents being merely one of the relevant factors. This means that if a parent unilaterally removes a child from their country of habitual residence, the court will not automatically determine that their habitual residence has changed to the country in which they are being retained. In these instances, they will consider the factual matrix as a whole, whatever the abducting parent’s intentions.
Importantly, however, in the case of Re B Lord Wilson concluded that ‘modern concept of a child’s habitual residence’ functions in such a way to make it ‘highly unlikely’ that a child’s habitual residence will ever be ‘in limbo’. As such, the law ‘operates in the expectation that, when a child gains a new habitual residence, he loses his old one’.
The above case law is also supported by the 1996 Hague Convention. This states that in the case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and either:
Each person, institution or other body having rights of custody (in the child) has acquiesced in the removal or retention; or
The child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody (in the child) has, or should have had, knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.
The second requirement means that if the left behind parent were to commence abduction proceedings within one year of the child being wrongfully removed, the 1996 Hague Convention thereby provides a mechanism to prevent the child’s habitual residence from automatically changing.
The 1980 Hague Convention aims to ensure the return of a child wrongfully removed from his country of habitual residence. Article 12 of this Convention makes it mandatory for a child to be returned to his state of habitual residence if proceedings are commenced within one year of the child’s abduction or retention. This is complemented by the 1996 Hague Convention protective measures in respect of habitual residence above, ensuring that removal of the child does not automatically change due to a parent’s unilateral action.
However, it is important to note that there are some defences which the abducting parent may raise:
The person now requesting the child’s return consented or subsequently acquiesced to the removal and retention of the child
There is a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views
The left behind parent should be prepared to rebut these in court to ensure that the return of the child is ordered and the unilateral attempt to change the child’s habitual residence is prevented.
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