These days, people move between countries with greater ease and relationships between those of differing nationalities is much more common. One consequence of this important social change is that issues sometimes arise concerning whether the courts in a particular country have the right to deal with a case.
In cases concerning children, it is the courts of the country where the child (or children) is “habitually resident” which is critical in deciding this issue. This is important because it determines where any future legal proceedings can be brought.
A recent, true, case clearly illustrates the point.
A British father (F) and Finnish mother (M) lived in England. They married in Finland in 2010 by which date their child (C) was aged 5. F and M separated in 2013 and C lived primarily with M.
Court proceedings began in England about the future arrangements for C. in 2014, a court gave M permission to take C to live with her in Finland. Details of the periods when C would be with F in England were fixed. M and C left England and took up residence in Finland at the end of 2014.
In the summer of 2015 (by which time M and C had been in Finland for about 6 months) F issued further proceedings in England. He was not represented by a lawyer in those proceedings and it was unclear from his documentation what court order he was seeking. Whatever it was, when the case came to court, the judge decided that C was habitually resident in Finland and that accordingly, the courts in England had no jurisdiction to hear the case.
How is habitual residence decided?
This is itself a matter that has given rise to considerable legal debate. However, the law is now settled.
If there is a dispute as to where the child is habitually resident, it is a question of fact, determined by reference to past legal decisions, which has to be decided by the judge. In doing so, the following are factors which will be taken into account.
- Any agreement between the parents about the child living in another country
- The intention of the parent with whom the child is primarily living as to the residence in a particular country (e.g. whether it is temporary or longer term)
- Whether the child has put down roots in the new country
- The extent to which, if at all, the child has severed links with the former country
- Is there clearly a country in which it would be in the best interests of the child for the legal proceedings to continue?
- In the words of a judge in a famous and important case “the place that reflects some degree of integration by a child in a social and family environment”.
In that case, the judge added,
“As, probably quite quickly, the child puts down those first roots which represent integration in the new country, up will probably come the child’s roots in the old country”.
It is clear from the above, that the judgment of where the child is “habitually resident” is one to be judged carefully by the judge, taking into account the attachment to the old country against that with the new. In some cases, a very detailed analysis of the situation that the child has left will be required: in others, less detail of that will be necessary and there will be greater focus on the circumstances in the new country.
Decision of the case
In the case referred to above, it was held that the child was habitually resident in Finland. The result was that the court in England no longer had the right to hear the case. If F wished to seek further court orders relating to C, he would have to do so in Finland.
This is a complicated and delicate area of the law. It is very important because it could have long term consequences for a child or children.
If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact Carline Gayle-Buckle on 01926 491181 or email CarlineG@moore-tibbits.co.uk