Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
Just how significant are parental intentions in determining a child’s habitual residence?
Sep 29, 2018, 21:53 PM
family law, habitual residence, Supreme Court, In the matter of AR (Children) (Scotland), children, relocation, parental intentions
Most international child lawyers may have thought that the concept of habitual residence had been determined by a trio of children cases heard by the UK Supreme Court during the last 2 years (Re A (Jurisdiction: Return of Child)  UKSC 60,  1 FLR 111; Re KL (Abduction: Habitual Residence: Inherent Jurisdiction)  UKSC 75,  1 FLR 772 and Re LC (Reunite: International Child Abduction Centre Intervening)  UKSC 1,  1 FLR 1486).
It is now settled law that the
same definition of habitual residence applies in all children cases (domestic
children cases, Hague Convention cases, etc) and mirrors that which has been
adopted by the Court of Justice of the European Union (CJEU). Habitual
residence is a question of fact and the child’s own state of mind can be a
relevant consideration when considering the question of the habitual residence
of an adolescent.
Some might have wondered what
further issues could possibly be raised in relation to habitual residence but
practitioners will know that habitual residence remains frequently contested
and some of the most difficult and hotly contested cases are those where
children have moved from one country to another for longer than a traditional 2-week
summer holiday but not a permanent relocation.
Parental intentions have always been a relevant factor in such cases but
how determinative can they or should they be?
The UKSC considered a case on 13
May 2015 that involves consideration of this issue. In the matter of AR (Children) (Scotland)the UKSC considered an
appeal against a decision made by the Court of Sessions in Scotland to refuse
to return two children to France. Their parents had agreed that the children
would live in Scotland (where the mother’s parents lived) during their mother’s
maternity leave which would be for about a year. The parents’ relationship broke down 4 months
into the children’s stay in Scotland and their father asserted that the
children remained habitually resident in France and sought an order for their
return to France. His application was
successful at first instance before the Lord Ordinary but his decision was
overturned by the Court of Sessions on appeal.
The Lord Ordinary at first
instance had found that that the children had remained habitually resident in
France because the parents had not made a joint decision to uproot the family
from France and relocate permanently to Scotland.
The Court of Sessions reviewed
the recent guidance from the UK Supreme Court before deciding to allow the
mother’s appeal. They considered that in Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948Baroness Hale stressed
that habitual residence was a question of pure fact and the concept should not
be legalised. In Re A Baroness Hale
had been critical of the “rule” that one parent cannot change the habitual residence
of a child unilaterally and she commented that there was no reference to this
in European cases. Baroness Hale quoted from the judgment in Mercredi v Chaffe (Case C-497/10 PPU) 
1 FLR 1293 which said:
'The concept of “habitual residence”…must be interpreted as meaning that
such residence corresponds to the place which reflects some degree of
integration by the child in a social and family environment. To that end, where
the situation concerned is that of an infant who has been staying with her
mother for only a few days in a member state – other than that of her habitual
residence – to which she has been removed, the factors which must be taken into
consideration include, first the duration, regularity, conditions and reasons
for the stay in the territory of that member state and for the mother’s move to
that state and second, with particular reference to the child’s age, the
mother’s geographic and family origins and the family and social connections
which the mother and child have with that member state.' (para )
Baroness Hale rejected any
suggestion that for residence to be habitual there has to be permanence. The
French word used was 'stabilite'. Baroness Hale referred to factual and
individual inquiry when determining habitual residence, focusing on the social
and family environment of the person upon whom the child is dependent.
Having reviewed the UK Supreme
Court’s guidance in the recent authorities, the Court of Sessions concluded
that the Lord Ordinary had erred when identifying that a shared parental
intention to permanently move to Scotland was needed to change the children’s
habitual residence. Four months was sufficient for a change of habitual
residence. If, from the beginning, the stay in Scotland was precarious in some
way or was without the father’s consent then different considerations might
arise but that was not the case here.
The father has appealed to the UK
Supreme Court and his appeal was heard on 13 May 2015. The issue for the court
is the significance of parental intention in the determination of habitual
residence of a child for the purposes of an application under the 1980 Hague
The UK Supreme Court decision is likely to have
enormous impact on international families and the manner in which their
children spend their time in multiple countries. It is likely to confirm the extent to which
parents can actually guard against their children becoming habitually resident
in countries against their wishes.
The decision is now awaited and once the
decision is handed down we will be writing a follow up article for Family Law reviewing the
outcome of this case and providing practitioners with helpful tips to assist in
cases where habitual residence is the central issue.