Deciding which country a child’s “habitual residence” is will determine which jurisdiction should decide any issues concerning that child.
What does ‘habitual residence’ mean?
Habitual residence is not statutorily defined in law. It is said to have strong similarities with “ordinary residence” and so in most cases it is clear in which country a child is habitually resident and therefore which state’s legal system any issues concerning that child are subject to.
However, children move (with their parent or parents) and can spend time with one parent in one country and time with the other parent in a different country.
If the parents disagree about arrangements for a child and a Court is required to make decisions then the question can arise, which Court?
There can be situations where one parent (without the agreement of the other) either takes the child out of a particular country or alternatively fails to facilitate the return of the child back to the other parent and a particular country. In those circumstances there needs to be identification as to which Court should deal with any disputes.
An example ‘habitual residence’ case
In a recent case, the parents had agreed that the two children who had moved with their mother from Germany to England in July 2018 would continue to live with their mother and her partner in England until 2019. After that they would divide their time on an almost equal basis with each parent, with the mother in England and the father in Germany.
In December 2018 the parents looked at arrangements again and there was agreement that the children would return to Germany with their mother in the summer of 2019. However, in July 2019 the mother, on discovering she was pregnant, told the father that she intended to stay in England with the children.
The father, relying on the agreement reached in December 2019 that the children would be returning to Germany in the summer of 2019, applied for the children’s return to Germany. The matter has recently been considered by the Court of Appeal.
Until July 2019 both parents intended that the children would return to Germany. At the first hearing the Judge found that the children had not lost their habitual residence in Germany by July 2019 because of the parents’ intention at the time that the children would return to Germany and it being said that the children’s connections to Germany were active.
What was the Court’s focus in this case?
The Court of Appeal considered that rather than considering whether the children had lost their habitual residence in Germany, the proper focus should have been upon whether the children’s residence in England has developed the requisite degree of integration and stability to establish habitual residence there.
The practical integration of the children in England was a more important factor than the parents’ intentions at the time. The Court of Appeal considered that the children had quickly settled in England, they had spent more time in England than Germany by July 2019, and that therefore the children were considered to be habitually resident in England.
It is important when cases involve different jurisdictions that a clear view is taken from the outset as to where to where the child or children’s habitual residence is.