If an application is made to the English Family Court concerning a child then the court only has jurisdiction to consider the application if the child in question was habitually resident in the English Court jurisdiction at the relevant time. If the court concluded that it did not have jurisdiction and that another court had – the English Court had to declare that it had no jurisdiction. If a child’s place of habitual residence could not be established – the court where the child was present would have jurisdiction on the basis that is where they were.
Under English law the habitual residence of a child under 16 is generally determined by the parent or parents who have parental responsibility. Where the child and both parents are living together, the child shares the habitual residence of the parents. In that case the child’s habitual residence cannot be changed without the consent of both parents or by a court order.
The habitual residence of a child is not changed where both parents and the child moved to a different country but only one parent acquires a new habitual residence.
Where parents separate the child’s habitual residence will follow that of the primary carer with whom they live. Parental responsibility is important here because a person without parental responsibility cannot change a child’s habitual residence simply by taking them to a different country.
Perhaps it is a little tautologies – but the question of habitual residence of a child is not always determinable by the reference to the combined intention of the parents; it ultimately depends on whether, in all the circumstances, it can properly and realistically be said that the child is habitually resident in a country.
The test for habitual residence is effectively this – the place which reflects some degree of integration by the child in a social and family environment in the country concerned.
Bill Wilkins is a partner in the Stephens Scown Family team. He specialises in all aspects of family and child care law and is a member of the Law Society’s Child Care Panel. Stephens Scown has offices in Exeter, Truro and St Austell. Its top-rated family team advises clients on a wide range of family law issues including divorce and family finance. Bill can be contacted on 01932 210700 or email solicitors@stephens-scown.co.uk