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We recently wrote about co-operation and competition between European countries following in the wake of the annual spectacle of the Eurovision song contest. That blog looked at the ways countries decide where a divorce case should be heard, and under which country’s laws the case should be decided. Continuing that international theme, we thought it would be worth having a brief look at how courts decide where cases concerning children should be sorted out, because there are some interesting things happening in the courts at present on this front.

We looked at the issue of child abduction between countries in a previous blog but this blog focuses instead on the very beginning of the process in international children cases about where and with whom a child should live and spend time, namely the question of which court in which country should take on the case.

The founding principle for jurisdiction is the child’s “habitual residence”. In essence, the court in the country where the child is habitually resident will have jurisdiction to hear cases concerning him or her.

There isn’t a single legal definition for the term “habitual residence”, and a lot of lawyers have argued over what it means in recent years. Broadly speaking, a person is habitually resident in a country where they are settled, with a degree of permanence, and where they have connections and interests. When we consider the habitual residence of children, then much will depend on the habitual residence of their parents and wider family, and also where they are being educated.

The approach is not uniform and depends on the countries involved, therefore specific and expert legal advice is essential when dealing with this kind of situation. The habitual residence test is slightly different if one is dealing with a European case (where a Europe wide Regulation governs jurisdiction) than cases involving non-European countries. Globally, 39 countries have signed up to the 1996 Hague Convention which provides that the state where a child is habitually resident will be responsible for making decisions about that child. In addition, separate rules apply as between the constituent parts of the United Kingdom, where Scotland and Northern Ireland have different legal systems.

A few key points have emerged from recent cases which have looked at the habitual residence of children. First, the courts seem to consider that even if a child divides his or her time between two countries, he or she can only be habitually resident in one country. This point was made in a recent case concerning a boy who spent half his time in Portugal and half in England, but as the agreement regulating his arrangements was made and approved in Portugal, the English court decided the boy was habitually resident in Portugal and declined to take on his case.

Secondly, it appears that where a child is removed from a country through legally dubious methods, i.e. without the consent of all the relevant people under law, the fact of the child’s removal to another country will not displace their being habitually resident in the country from which they were removed. This was confirmed in two recent cases. The first concerned a child removed by her grandmother to America without her father’s consent, and the other concerned a child who lived with his aunt and uncle by agreement, but whose parents took him to Nigeria without the aunt and uncle’s consent. In both cases the court decided the children’s habitual residence here in England was not altered by their physical presence elsewhere, especially as that presence was not consensual.

Thirdly, the courts have decided that new born babies do not automatically take on the habitual residence of their mother, or custodial parent. This was confirmed in a case where a mother who was habitually resident in England gave birth in Pakistan, and was subsequently held prisoner there by her husband’s family. She escaped back to England without the baby and sought to have the baby returned to her. The court said as the baby had never been to England, and was still in Pakistan at the time of the hearing, he was habitually resident there, so the English court did not have the ability to order him to be brought to this country. It was for the Pakistan courts to decide what should happen to him. As so often the case, although we can see the legal reasoning behind the decision, justice does not quite seem to have been served; and we have just heard that the case will be heard by the Supreme Court in July. So, as they say, watch this space.

There are no hard and fast rules concerning habitual residence, and each case will depend upon its own unique factual matrix, including the countries involved, the connection of the relevant child with the relevant countries, and legality or otherwise of the actions of a child’s parents or carers. In an increasingly mobile world where families move between countries frequently and with ease, the question of which court should determine parents’ disputes can become a complex issue where specialist legal advice at an early stage is essential.

If you would like to discuss anything raised in this blog, please call Adam, Gail Simon or Sue on 01223 443333.


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