The difficult question of habitual residence

Family Law|August 2nd 2016

As I read through the law reports certain issues arise on a regular basis. One of those issues is the question of in what country a child is habitually resident, something which is crucial to deciding whether or not the courts here have jurisdiction to deal with matters relating to the child. That the question is so commonly raised and is so important should, of course, come as no surprise, given the international nature of family law these days, with families regularly crossing international borders.

The latest such case is Re L (Habitual Residence: Domestic Abuse), which demonstrates how difficult the issue of habitual residence can be to decide, with one judge’s preliminary view being the opposite to the view of another judge, who had the benefit of looking at the matter in greater detail. The case involved public care proceedings, but the principles regarding the issue of habitual residence apply equally to private proceedings concerning children.

The case concerned a child who was born in Ukraine in October 2014. Her mother was a Ukrainian national and her father was a British national. They had met via an internet dating site and had married in Ukraine in 2013. It was agreed that the family would move to the UK, where it was thought that a better life could be offered to the child, particularly in view of the crisis that was then enveloping Ukraine.

In November 2015, the mother duly travelled to England with the child, moving into the father’s home. Unfortunately, there were then serious problems within the marriage, and the relationship between the mother and father quickly broke down.

On the 29th of February 2016 the father telephoned the NSPCC and reported that the mother had shaken the child “like a rag doll” on more than one occasion – (he later admitted that the allegation was false, motivated by anger towards the mother). The NSPCC made a child protection referral to the local authority, which then sought an emergency protection order. The order was granted and the child was removed into foster care. The local authority then sought an interim care order, concerned in particular about the state of the parents’ home and the very high level of acrimony between them.

Remarkably, when it issued its application the local authority indicated that the case did not raise any issues of jurisdiction. However, the issue was raised in the course of the proceedings and the judge made a provisional finding that the child was habitually resident in England, at the critical date of the application for an emergency protection order. That finding was made without the benefit of argument from the advocates, who chose not to make submissions on the point, instead accepting the judge’s view.

Following this, the parents dismissed their legal teams and at a subsequent hearing asked the judge to re-consider the jurisdiction question (they clearly preferred the case to be dealt with by the Ukrainian authorities, rather than the authorities over here). The judge declined to re-consider the matter, but the case was then transferred to the High Court for determination of the issue of jurisdiction.

The matter was considered by Mr Justice Cobb. He found that the child was still habitually resident in the Ukraine as at the date of the application for an emergency protection order. His reasons included the following:

  1. The child spent the first 13 months of her life in Ukraine with her mother and her mother’s family, deeply integrated into that country.
  2. At 17 months of age, the child took her habitual residence primarily from her mother, as the parent on whom she was most dependent.
  3. The mother’s intentions on her arrival in this country were among the relevant factors, but they were by no means decisive. The mother originally intended to move to England permanently. However, by the time she got here her views had changed, as she was no longer certain whether this would be either a positive or indeed permanent move.
  4. Within a short time of arriving in this country “the mother’s fading optimism about life here all but evaporated altogether”, due to her relationship with the father becoming abusive, as a consequence of which she became deeply unhappy and isolated.
  5. By the time of the application for an emergency protection order, neither the mother nor the child had integrated to any measurable extent in England, and accordingly neither had acquired habitual residence here.

Accordingly, the proceedings, along with the child herself, were to be transferred to Ukraine.

The full report of the case can be read here.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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