When Does A Child Become Habitually Resident?

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...

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