The High Court has ruled that a child’s habitual residence can be changed if they are relocated from one country to another before the appeals process has run its course.
‘Habitual residence’ means the place where a person usually lives and is a legal concept used to determine which laws should apply in multinational cases and where such cases should be held.
The case of DL v EL concerned an American husband and British wife. They married in 2005 and lived in Texas, where their child KL was born in 2006. The couple separated in 2008 and the mother returned to the UK. However, when the divorce was finalised in 2010, a court in Texas awarded custody of the child to the father.
The mother did not appeal against the decision of the Texas court. Instead she launched proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, claiming that the child had been habitually resident with her in the UK at the time the court had awarded custody to the father. The US courts ruled in her favour and the child was returned to the mother. She then returned to the UK for a second time, where she applied for an order granting the status of ‘resident’ parent (the parent with whom a child lives).
Meanwhile the father appealed the US court’s decision under the Hague Convention and in July last year, the US Court of Appeals 5th Circuit ruled in his favour, ordering the mother to return the child to the US and the custody of his father. The mother appealed this decision to the US Supreme Court and a decision is pending.
However, the father also applied for a return order under the Hague Convention, claiming the child had been unlawfully detained by the mother, and also questioning the basis of the UK court’s ‘inherent jurisdiction’ – ie. whether the UK courts had any right to rule in the case.
This application became before Sir Peter Singer in the Family Division of the High Court. He considered but rejected a claim that the return of the child to the mother’s care after her successful Hague application had retrospectively become unlawful after the father’s successful appeal.
The judge decided that the central issue in the question of whether or not the mother had unlawfully detained the child was the child’s habitual residence. The court came to the decision that the child had been resident in the UK at the time the father appealed the Hague ruling, notwithstanding the court’s later decision to rule in the father’s favour.