Sadly, disputes regarding the international movement of children are common in the English courts, as a result of the increasingly international dynamic of families who move from country to country with their children. Moving a child to another country without the approval of the other parent or permission from a court can have serious legal implications and child abduction proceedings may become inevitable.
The laws and procedure relating to the removal of children out of the jurisdiction and orders for their return are complex. Of central importance to any decision regarding the movement of a child internationally is the determination of their habitual residence. This should be one of the first things you discuss with your lawyer in a child relocation case.
What is habitual residence?
Habitual residence is used to determine the law which should be applied to a legal dispute when there is a question of conflicting jurisdiction. It is a crucial question to be determined in international children law; where is the person’s permanent or habitual centre of his or her interests. This is usually the country where the person lives or spends the majority of his or her time.
It is likely to be easier to determine an adult’s habitual residence than a child’s. Does a child’s habitual residence simply reflect that of their parent’s and/or the country where their parent wants to establish themselves permanently? The answer is no. This was confirmed in the recent Supreme Court decision in Re B. For years, the English courts have placed significant emphasis on the parental intention of the moving parent. This used to be a highly determinative factor in working out a child’s habitual residence.
According to Re B, this is no longer the case and the recent judgment has provided for a much more child-focused understanding of habitual residence. It must be determined alongside a range of other factors, which includes the intention of the parent but this should not be exclusively considered.
The change to a ‘child-focused’ approach to habitual residence in the case of Re B
The case of Re B (A child) concerned a seven year old girl known as ‘B’ who was taken to Pakistan by her mother. Her mother had been in a same-sex relationship with another woman considered to be ‘B’s’ non-biological mother. She was not lawfully ‘B’s’ parent but was considered by the Supreme Court to be a significant person in ‘B’s’ life. ‘B’ was removed from the UK without the knowledge of her non-biological mother and the case concerned the non-biological mother’s steps to bring her back to England from Pakistan.
The non-biological mother argued that ‘B’ had not lost her habitual residence in England despite the fact she was living in Pakistan with her mother whose intention was to remain in Pakistan permanently.
The lower court and the Court of Appeal dismissed the non-biological mother’s applications and held that ‘B’s habitual residence in England had indeed been lost immediately upon her removal from Pakistan and there was nothing B’s non-biological mother could do to get her back.
The case went to the Supreme Court in December 2015 who decided (by a majority of 3:2) that on the date the non-biological issued her applications to the court ‘B’ had not lost her habitual residence in England.
The Supreme Court decided that a child’s habitual residence is not automatically lost when they leave a country. A child’s habitual residence is only lost over time as a child engages with and assimilates into their new life in the new country.
The concept of habitual residence operates in the expectation that when a child gains a new habitual residence, he loses his old one which was likened this to the analogy of a see-saw.
“As a child puts down roots in a new state, his roots in the old state are pulled up until he reaches the point where he reaches the required state of disengagement from it.”
The court stressed the importance of a child-focused approach to determining habitual residence rather than placing too much weight on the moving parent’s intention, which has the risk of displacing the rights of the left behind parent, particularly if they do not hold parental responsibility for the child, as was the case in Re B.
What is the potential impact from Re B on parents intending to move abroad with their children?
- A court will not primarily focus on the parent’s intention when deciding a child’s habitual residence. A court will analyse the factual reality of a child’s new life in their new country and what they have left behind.
- It is now wrong to presume that habitual residence is automatically lost when a child leaves their old country even when the parent has the intention of moving to the new country permanently. This is just one of the factors that will be considered.
- A child may acquire habitual residence in the new country when the arrangements for them are permanent (e.g. where they will live, school places etc.). The transfer into their new social and family environment should be as seamless as possible to enable a child’s roots to “come up” in their former country and to “go down” in their new environment.