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Family Law

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19 MAY 2015

Just how significant are parental intentions in determining a child’s habitual residence?

Just how significant are parental intentions in determining a child’s habitual residence?
Helen Blackburn (Partner) and Mandeep Gill (Associate Solicitor), International child law specialists at The International Family Law Group LLP

Most international child lawyers may have thought that the concept of habitual residence had been determined by a trio of children cases heard by the UK Supreme Court during the last 2 years (Re A (Jurisdiction: Return of Child) [2013] UKSC 60, [2014] 1 FLR 111Re KL (Abduction: Habitual Residence: Inherent Jurisdiction) [2013] UKSC 75, [2014] 1 FLR 772 and Re LC (Reunite: International Child Abduction Centre Intervening) [2014] UKSC 1, [2014] 1 FLR 1486). 

It is now settled law that the same definition of habitual residence applies in all children cases (domestic children cases, Hague Convention cases, etc) and mirrors that which has been adopted by the Court of Justice of the European Union (CJEU). Habitual residence is a question of fact and the child’s own state of mind can be a relevant consideration when considering the question of the habitual residence of an adolescent.

Some might have wondered what further issues could possibly be raised in relation to habitual residence but practitioners will know that habitual residence remains frequently contested and some of the most difficult and hotly contested cases are those where children have moved from one country to another for longer than a traditional 2-week summer holiday but not a permanent relocation. Parental intentions have always been a relevant factor in such cases but how determinative can they or should they be?

The UKSC considered a case on 13 May 2015 that involves consideration of this issue. In the matter of AR (Children) (Scotland) the UKSC considered an appeal against a decision made by the Court of Sessions in Scotland to refuse to return two children to France. Their parents had agreed that the children would live in Scotland (where the mother’s parents lived) during their mother’s maternity leave which would be for about a year. The parents’ relationship broke down 4 months into the children’s stay in Scotland and their father asserted that the children remained habitually resident in France and sought an order for their return to France. His application was successful at first instance before the Lord Ordinary but his decision was overturned by the Court of Sessions on appeal.

The Lord Ordinary at first instance had found that that the children had remained habitually resident in France because the parents had not made a joint decision to uproot the family from France and relocate permanently to Scotland.

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The Court of Sessions reviewed the recent guidance from the UK Supreme Court before deciding to allow the mother’s appeal. They considered that in Re A (Sexual Abuse: Disclosure) [2013] UKSC 60, [2013] 1 FLR 948 Baroness Hale stressed that habitual residence was a question of pure fact and the concept should not be legalised. In Re A Baroness Hale had been critical of the “rule” that one parent cannot change the habitual residence of a child unilaterally and she commented that there was no reference to this in European cases. Baroness Hale quoted from the judgment in Mercredi v Chaffe (Case C-497/10 PPU) [2011] 1 FLR 1293 which said:

'The concept of “habitual residence”…must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother for only a few days in a member state – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first the duration, regularity, conditions and reasons for the stay in the territory of that member state and for the mother’s move to that state and second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that member state.' (para [50])
Baroness Hale rejected any suggestion that for residence to be habitual there has to be permanence. The French word used was 'stabilite'. Baroness Hale referred to factual and individual inquiry when determining habitual residence, focusing on the social and family environment of the person upon whom the child is dependent.

Having reviewed the UK Supreme Court’s guidance in the recent authorities, the Court of Sessions concluded that the Lord Ordinary had erred when identifying that a shared parental intention to permanently move to Scotland was needed to change the children’s habitual residence. Four months was sufficient for a change of habitual residence. If, from the beginning, the stay in Scotland was precarious in some way or was without the father’s consent then different considerations might arise but that was not the case here.

The father has appealed to the UK Supreme Court and his appeal was heard on 13 May 2015. The issue for the court is the significance of parental intention in the determination of habitual residence of a child for the purposes of an application under the 1980 Hague Convention.

The UK Supreme Court decision is likely to have enormous impact on international families and the manner in which their children spend their time in multiple countries. It is likely to confirm the extent to which parents can actually guard against their children becoming habitually resident in countries against their wishes.

The decision is now awaited and once the decision is handed down we will be writing a follow up article for Family Law reviewing the outcome of this case and providing practitioners with helpful tips to assist in cases where habitual residence is the central issue.
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