When does a child become habitually resident?

30 March 17

There is on the face of it a straightforward rule that means if a child is living in England, the Court will likely have authority to address any legal issues which arise in relation to that child. However, the application of this rule by the courts of England and Wales has not been straightforward, with decisions concerning the habitual residence of children having been appealed to our highest court, the Supreme Court, no less than five times since 2013.

This article considers the nuances that have arisen in relation to the development of the concept of a child's habitual residence, by way of a brief analysis of the Court of Appeal decision in Re J (published in March 2017). This case involved a boy aged 3½, whose father argued he was habitually resident in England and whose Finnish mother argued he was habitually resident with her in Finland.

Acquiring habitual residence

The underlying test for habitual residence was confirmed by Baroness Hale in the Supreme Court in the case of A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and other intervening) [2013] UKSC 60 as congruent with the European understanding of the concept; namely 'the place which reflects some degree of integration in a social and family environment' in the country concerned.

There is no legal rule which gives rise to automatic habitual residence, in contrast to the acquisition of a parents' domicile by their child. In Re R [2016] AC 76 the Supreme Court made it clear that when determining habitual residence the focus should be on the factual situation of the child, with the intentions of the parents being merely one of the relevant factors. However the child's age is relevant to this, and in the case of LC [2014] UKSC 1, Lord Wilson noted that where an infant child lawfully moves with a parent to a state where that parent would be habitually resident, it would be highly unusual for an infant child not to acquire habitual residence there.

Loss of habitual residence

Whilst these cases considered the ways a child acquires habitual residence in a new state, in Re B [2016] 2 WLR 557 the Supreme Court identified that there had been an absence of judicial consideration of the timing and circumstances which could give rise to the loss of habitual residence. Lord Wilson in an attempt to make the concept straightforward said: 'Simple analogies are best: consider a see-saw. As probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or better disengagement) from it'.

Application to the facts in Re J

In this case the parties met in 2003 and were married in Finland in 2010. They lived for the duration of their relationship in London but visited Finland during that time. They separated in 2013 and the mother applied to the English court for permission to take the parties' child, J, to live with her in Finland. The mother's application was granted in November 2014 and the order made by the Court included arrangements for J to spend time and have skype contact with his father.

The mother and J left England for Finland on 29 December. Some 4 months later the father applied to stay the decision that had granted leave for J to be removed. In order to determine whether the court had jurisdiction to make a decision, the Court of Appeal had to consider whether J was habitually resident in England at the time when his father made this application.

Integration

It was significant that J's move to Finland was lawful and sanctioned by the Court. If the move had been unlawful then there would be concerns that its unlawful nature could interfere with J's integration in a new country. For example, In Re B, the secretive nature of the child's move (although lawful) interfered with her ability to integrate whole heartedly in the new country. In this case, the mother's plans had been scrutinised as part of her application for leave to remove, and her pre-planning would have impacted on J's ability to settle quickly into the arrangements made for him. This was borne out by the speed with which he settled into his new nursery. The mother was well equipped to make the move because she was returning to her native country and to the home where she was brought up. Behavioural difficulties identified in England had already been resolved in the new stable environment.

The father sought to demonstrate that J could not have disengaged with England by April 2015 due to the depth of his connections in England. Prior to the move, he had enjoyed substantial contact with the father, his wider family and had been settled in his English nursery. However, the Deputy District Judge hearing the initial application concluded that the mother had been J's primary carer throughout his life and had offered him considerable and important stability. The circumstances in which J had been living in England with his mother were described as 'less than optimal' and they had had been obliged to move once in the 18 months prior to the mother's application.

J's relationship with his father and other members of his family were continuing links for him that were amongst features that might have slowed his integration to life in Finland, but were not sufficient to delay his integration past April. In this case J became habitually resident in Finland early in 2015 - that is within a short period of arrival.

Future decisions

Whilst this case provides a useful resumé of relevant factors, the Court of Appeal cautioned against comparing the facts of decided cases, as the issue of where a child is habitually resident will be decided on the discrete circumstances specific to each case.  

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