Habitual residence and child abduction – where are the boundaries?

When a child is taken by one parent to a foreign country away from their other parent, emotions will always run high and the law will often be complex. Recently the BBC attempted to explore the legal minefield that is international child abduction law by covering the story of Tracy, whose daughter had been taken by her father, a Czech citizen, from Bradford to the Czech Republic.

In the programme the BBC suggested that:

Under the Hague Convention, which governs cases of child custody waged across international borders, a child’s base is considered to be the country in which he or she has lived longest. In Tracy’s daughter’s case, this was the Czech Republic, where she had lived for seven years. This made it hard for Tracy to make a legal argument for her daughter to be returned to Bradford.’

Unfortunately, this is a very misleading description of a legal concept called ‘habitual residence’ – which is of crucial importance to defining whether a child has technically been ‘abducted’ at all, and whether they should be sent back ‘home’. In legal terms, an ‘abduction’ occurs when a parent removes a child from their country of habitual residence without the permission of all those with parental responsibility (usually just the other parent) or the court. The Hague Convention is an international treaty which aims to ensure that a child in this situation is swiftly returned to his or her ‘home’ country. If a child was not habitually resident in Country A before being removed to Country B, then there is technically no ‘abduction’ from Country A and therefore the Hague Convention would not assist.

Determining a child’s habitual residence is not always straightforward. Contrary to the BBC’s explanation, it is not simply the country a child has lived longest in. The importance for the BBC of getting this right is hugely significant. Public understanding of what might amount to abduction is already very poor, and a parent getting this wrong could be committing a criminal offence. A parent who assumed that they were safe to remove a child to France because they have previously lived there for three years, even though they have more recently lived in England for two years, would be on very shaky ground. It is far more likely that this child would be habitually resident in England. However, it is important to note that determining a child’s habitual residence at any given time depends on the unique facts of the particular case. In the case of: B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam)The judge concluded that ‘habitual residence of a child is all about his or her life and not about parental dispute. It is a factual exploration’.

That case helpfully summarised some of the factors a judge will take into account before reaching his assessment of a child’s ‘habitual residence’

  1. The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment.
  2. The test is essentially a factual one … the factual enquiry must be centred throughout on the circumstances of the child’s life that is most likely to illuminate his/her habitual residence.
  3. Its meaning is ‘shaped in the light of the best interests of the child, in particular on the criterion of proximity’. Proximity in this context means ‘the practical connection between the child and the country concerned’.
  4. It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent.
  5. A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her. The younger the child the more likely the proposition.
  6. Parental intention is relevant to the assessment, but not determinative.
  7. It will be highly unusual for a child to have no habitual residence. Usually a child loses a pre-existing habitual residence at the same time as gaining a new one.
  8. In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he/she lived before the move.
  9. It is the stabilityof a child’s residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there.
  10. The relevant question is whether a child has achieved some degreeof integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident.
  11. The requisite degree of integration can, in certain circumstances, develop quite quickly.  It is possible to acquire a new habitual residence in a single day.

If you have any questions about habitual residence, international law relating to a child’s home life or any other family matter, you can call 01223 443333 and ask to make an appointment to speak with Tricia, Adam, Sue, Simon, Gail or Jeremy.