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Family Law

The leading authority on all aspects of family law

02 SEP 2014

Habitual residence of the child revisited: a trilogy of cases in the UK Supreme Court [2014] CFLQ 342

Keywords: Habitual residence - child abduction - Hague Convention - Brussels II bis - child-centric

In a recent trilogy of cases, the UK Supreme Court has adopted a new child-centric model for determining the habitual residence of a child in international custody and abduction disputes. This case commentary examines these cases in detail and analyses the implications of the new approach generally and with specific reference to two questions in relation to which the Supreme Court was divided: the need for actual presence and the relevance of the child's own perceptions. In addition, the commentary considered a number of issues related to or arising from findings of habitual residence, which are highlighted by these cases. These include the possibility of siblings being separated where they do not share a common habitual residence and the need for independent representation of children in cases where there is a dispute as to habitual residence. The author concludes that, while the new approach to habitual residence indicates increasing recognition that the Hague Abduction Convention was designed to protect children who are independent actors with rights and interests distinct from those of their parents, a truly child-centric approach requires additional changes and in particular provision of separate representation for children in far more cases.

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