How ‘Habitual Residence’ affects International Families

Emma Palmer, MSB

Families relocate abroad for many different reasons and is more common than ever before. It can be an exciting time of opportunity bringing with it positive lifestyle change. Within all this excitement parents do not often consider what will happen if the relationship breaks down after the move, with many parents preferring to keep a positive outlook on their new adventure.  It is extremely important for families to understand the law relating to their children before they move abroad. One little known about, but vital aspect is the legal term ‘habitual residence’. In this article I will explain the meaning of ‘habitual residence’ and how it applies to international families.

When a family decides to move abroad the ‘habitual residence’ of the child/ren may change to the new country relatively quickly. In most cases, it is the court in the country where the child is habitually resident that makes decisions about the child. It is therefore very important to understand what habitual residence is and how it is determined. Many parents believe that a parent can take the child back to their home country without difficulty whilst others believe that the child would stay in the new country as that was the intended plan. The reality is very much dependent on the exact familial circumstance and, in countries that abide by certain international agreements such as the Hague Convention, is largely dependent on where a child is ‘habitually resident’.

Where parents cannot agree whether a child should live in country A or country B, the first question is which country’s court should make such decisions about the child. To make this decision the child’s ‘habitual residence’ needs to be determined. Sometimes this is a simple exercise with an obvious answer, but at other times it is a more complex situation requiring careful consideration and evidence.  It is the child’s habitual residence at the time of the proposed further relocation that is relevant or, if a parent has already unilaterally taken the  child  from one country to another  then it is the child’s habitual residence at the time of unlawful removal or retention that is key.

Habitual residence is a question of fact. It is accepted to be defined as ‘the place which reflects some degree of integration by the child in a social and family environment’.  This means that a child does not have to be fully integrated to acquire habitual residence.  When both parents move with a child to a new country habitual residence can be acquired very quickly, sometimes in a matter of days or weeks. Conversely, where a parent unilaterally takes the child it may take several months or years for habitual residence to change. Moving to a new country as a family for job opportunities or a life in the sun could mean that a child quickly becomes habitually resident in the new country. In such a scenario the parent wishing to move back ‘home’ would need the consent of the other parent, or the consent of the court in the country the family is now living in, before the child is able to accompany the parent back to their country of origin. There can be many hurdles to obtaining court approval to return home: it may take a number of months, sometimes years to achieve, may be prohibitively expensive and language barriers may be problematic. Unfortunately, financial and immigration constraints can also mean that sometimes a parent is forced to leave their child with the other parent and move back to their home country alone until resolution of court proceedings.

A child cannot be habitually resident in two places at once and so when a child moves from one country to another it is for the court to determine whether the child remains habitually resident in country A or has lost that habitual residence and acquired it in country B. Only extremely rarely will the court find that a child has no habitual residence or one that cannot be established.

The  English Supreme court[1] has helpfully given some thoughts on how quickly a child can lose habitual residence in one country and acquire it in another:

  1. The deeper the child’s integration in the old country, the slower it will usually be to acquire integration in the new country
  2. Integration in the new country is more likely to be faster if arrangements for the child’s nursery/school/living arrangements were made in advance.
  3. If the central members of a child’s life all move with him/her then integration is also likely to be faster. If someone is left behind, that is likely so slow it down.

A non exhaustive list of considerations for habitual residence are as follows:

  1. Was the move to the new country pre-planned?

Evidence could include – one way plane ticket/open return with changeable date, shipping belongings, long term rent/purchased property, VISA, job applications, etc

  1. Did the other parent consent to the move?

Evidence can include – written agreement, evidence of discussions, leaving party etc

  1. Have post move connections been established to the new country?

Evidence can include: shipping belongings, purchasing property/long term tenancy, renewing/changing VISA/applying for citizenship, opening bank accounts, employment, paying income tax and VAT

  1. Has the child established a connection with the new country?

Evidence could include – registering with health professionals, school/nursery, spoken languages, what the child’s view on where ‘home’ is etc

  1. Are there pre-existing links with the new country?

Evidence can include previous time spent in the new country, family links etc

  1. What is the depth of the retention of connection with the country the child left?

Evidence can include – a home still owned/tenancy still in place, bank accounts still being open, registration with doctors, employment to return to, belongings still in storage etc

  1. Age of the child – a young infant is more likely to have the same habitual residence as his primary carer as his social and family life will revolve around them. The primary carer’s integration would then be looked at.

When considering all of these points it is important to remember that it all should be looked at from the child’s perspective and not twisted or glossed to fit the desires of either parent. When this information is considered as a whole, it is often clear where the child is habitually resident.

Habitual residence has evolved through case decisions and inevitably will continue to evolve over time. A scan of the internet will not necessarily allow you to understand that updated position and it is important to get legal advice if there is any uncertainty about the habitual residence position of a child as it could have huge implications on your case.