Habitual residence – a bright line rule or context dependent

Mary Welstead, Visiting Professor in Family law University of Buckingham

A British mother applied to have her baby who was born, and lived, in Spain, returned to England for her future to be decided. The Andalusian Child Protection Authority had taken the child into care shortly and were planning for her to be adopted in Spain; six of her siblings had already been taken into care.

The court had to decide jurisdiction and focussed on the issue of whether a child can be considered habitually resident in a country which she has never entered or whether habitual residence might be context dependent.

Mr Justice Poole held that a child’s habitual residence normally required her physical presence. The 1996 Hague Convention did not justify the court transferring jurisdiction to England and the court refused to use the parens patriae jurisdiction to do so; Spain was already acting to protect the child.

The judgment, whilst correct in the context of the facts before him, may produce harsh outcomes for families who lead an international life. It raises the question whether strict legal rules should ever take precedence over a child’s best interests.