In this blog, children and child abduction solicitor, Louise Halford, looks at what habitual residence means and why it is important in children law proceedings, and in applications for child arrangement orders and disputes over parental child abduction.
Why is your child’s habitual residence important?
For international families the legal concept of habitual residence in children law is important. If your child is classed as habitually resident in England, then the court in England and Wales will have the jurisdiction to decide where your child should live, who they should have contact with and whether they can live overseas.
A child’s habitual residence can be complicated because a child can be habitually resident in the UK even though the child is not a British citizen and nor are their parents. If your family is in the UK on a work visa or family visa or dependant visa, your child may be habitually resident in England.
If you are planning to leave the UK with your child it is best to speak to a children law solicitor to see if your child may be habitually resident in the UK and to understand the steps you need to take to legally take your child out of the UK.
If your child is habitually resident, and you don’t follow the correct steps and procedures before leaving the UK with your child, then you could be committing a child abduction offence. The English court could order that your child is returned to England so the English court can decide on where your child should live.
What does habitual residence mean?
Put simply, habitual residence means where you normally live. A child can be habitually resident in a country even though the child’s parents don’t live in that country.
Habitual residence does not have anything to do with your nationality as you don’t need to be a British citizen or have indefinite leave to remain to be habitually resident in the UK. It is a question of fact.
When assessing if a child is habitually resident in England, a child abduction solicitor or children court will look at how integrated the child is. For example, does the child go to school in the UK? Is the child enrolled at sports or other leisure groups in the UK?
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What happens if my child is habitually resident in England?
If your child is habitually resident in England then the English court has jurisdiction to decide where your child should live if there is a dispute with the other parent.
Under English law you can’t take a child to live overseas without the agreement of the other parent and the consent of anyone else who has parental responsibility for the child. If you can’t get written permission you can apply to court for a relocation order. If you leave the UK without a relocation order or written consent then you could be accused of parental child abduction and your child could be made the subject of a return order.
The law may seem bizarre to some parents, especially when you are intending to return to a home country or a country where you have strong family or other ties. However, children law solicitors recommend that you get legal advice on the meaning of habitual residence and how the legal concept may affect you and your family and the children law order solutions available to you so you can go ahead with your plans to leave the UK with your child.