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Unilateral Change of a Child's Residence

What is habitual residence? 

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.  

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Why is habitual residence relevant? 

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 childs 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 childs person or property.  

Can habitual residence be changed by a parents unilateral actions? 

Habitual residence can be changed by a parents 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 parents 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 parents intentions. 

Importantly, however, in the case of Re B Lord Wilson concluded that modern concept of a childs habitual residence functions in such a way to make it highly unlikely that a childs 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 Conve

The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.

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