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The family courts take a modern approach to define a child’s ‘habitual residence’

Feb 10, 2016   ·   4 minute read

Habitual Residence means the country where a child lives permanently. It seems straightforward but this is a far more complicated question than would appear, particularly when a child has just been moved to another country. It was previously thought that a child would not be ‘habitually resident’ in the country they have moved away from as soon as they leave that country. However it was also the case that you could not be habitually resident in a country the day you set foot there. This has meant that the courts would decide some children have no Habitual Residence – a limbo land where making decisions about their welfare was difficult or impossible.

This week however, the Supreme Court handed down a judgment in a case ( involving a lesbian couple and their 7 year old daughter, which should make such difficulties a rarity.

The case centred around a 7 year old girl (referred to as B) who had been moved to Pakistan with her mother in February 2014. She had been born as a result of IVF treatment with a sperm donor in 2008. Whilst the non-biological mother could not legally be her parent there was no doubt over her role as a parent in the family, and it was clear that she was treated as a mother by the child. The parents separated in 2012, and over the following 2 years the biological mother gradually reduced the amount of time the other parent spent with her. This culminated in the non-biological mother instructing a family lawyer in 2013.

In secret, the biological mother moved with the child to Pakistan in February 2014. It was in March 2014 that the non-biological mother made an application to the court. She was unaware until June of that year that B had been taken to Pakistan. Initially the courts ordered that they could not make any decisions about B ‘s contact with her non-biological mother because when she was taken out of the country to Pakistan in February 2014 she was immediately no longer habitually resident here. In this landmark decision, the Supreme Court decided that this could not be the case. They confirmed that Habitual Residence does not immediately disappear as soon as the original country has been left, and the following issues must also be considered:-

A) if the child was very integrated in the original country, the longer it would take for them to be integrated into a new one
B) it is likely that if the adult has done a lot of planning for the move, particularly in relation to the arrangements for the child’s day-to-day life in the new country, the child’s integration into the new country is going to be faster
C) integration into the new country will occur faster if central members of the child’s old life have moved with them, and conversely the integration will take longer if key figures to the child have been left behind.

Looking at B’s situation from this perspective meant that the English court could easily decide that when the non-biological mother made her application to the court (9 days after B had moved to Pakistan), B was in effect still habitually resident here. As a result the courts of England and Wales could make decisions with regard to when and how often and by what means she could see her other parent.

This signals a child-focussed approach, a more modern focus on the child rather than the intention of the parent. It is hoped that this will also mean that no longer will a child fall into the limbo-land of having no country of Habitual Residence that can make decisions about their welfare.

I am an experienced family lawyer specialising in children disputes, particularly those with a international element. Please do not hesitate to contact me for advice in this area (01625 728010)