What is habitual residence?
The concept of habitual residence is fundamentally important for a client involved in an international children case. It is the standard used to show a connection between a child and a particular country.
Habitual residence is important because a child’s residence in a state, is the internationally recognised threshold for the courts to have the power to determine issues in relation to him or her.
Habitual residence is not defined in statute or treaties, despite it being referred to in the Hague Convention 1980, the Hague Welfare Convention 1996, Brussels II Revised and the Family Law Act 1986.
The current position, which survives the departure of the UK from the EU on 31 January 2020, is set out in the case of Re A (Children) (AP) [2013] UKSC 60. The case determined that habitual residence is ‘the place which reflects some degree of integration in a social and family environment’ in the country concerned. The purposes and intentions of the parents being merely one of the relevant factors. The full summary is set out below.
i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.
iii) The test adopted by the European Court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.
v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.
vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.’
Loss of habitual residence
A child does not always acquire habitual residence in a new state by simply moving states. When considering whether a child has lost their habitual residence in country A, the correct question to consider is whether the child has achieved the requisite degree of disengagement from their environment in country A by moving to country B.
It is important for clients to be aware that if they agree to a child moving to another country, even if only for a defined period or for a particular purpose the child’s habitual residence may change. This is important because the legal principles used to determine questions surrounding a child’s upbringing may be completely different in one country compared to another. A child’s habitual residence can change following an international move, notwithstanding that the left-behind parent may not agree to such a change. A child’s habitual residence can change following an move that is only intended to be temporary or for a defined purpose, and the question of whether or not a child’s habitual residence has changed is a question of fact.
Watson Morris and habitual residence
Any client’s concerned with the consequences of their children residing in another state, either on a temporary or semi-permanent basis, should seek legal advice immediately.
Contact the team at Watson Morris for more information.
Written by Peter Morris
October 18, 2022
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