Parental child abduction

Parental child abduction: the crucial relevance of habitual residence

Pam Sanghera defines international parental child abduction and explains its legal framework, with a focus on the fundamental issue of habitual residence.

About the author
Pam Sanghera FCILEx, of the Family Firm Solicitors in Birmingham, is an award-winning child abduction lawyer. She is a specialist in child abduction, wardship, habitual residence and jurisdiction matters.

Sunshine and shadow

It paints a pretty picture: foreign holidays, both cheap and accessible, are the perfect setting for romance. Whether it be the attraction of different cultures, good weather conditions or much wine, mixed-nationality relationships blossom. The movement of people from disparate backgrounds and cultures in a global world has, today, spawned disputes over children with an international element.

Not all romances have a happy-ever-after ending: while some relationships flourish, when children arrive and a dispute arises, where should those children reside after separation?

A large number of parents, usually loving mothers, leave the country in question taking the children with them, with little regard for the other parent’s relationship. Though the children may suffer in an international tug of war, the situation can be desperate for the left-behind parent, even an unsatisfactory one who pays no maintenance and sees the child once in a blue moon. What do they do? Where should they turn and to whom?

Getting the child back

The fundamental aspect as to whether the left-behind parent can get the child back from overseas will, in practice, depend on where the child was habitually resident before removal for the purpose of rights under the Hague Convention on the Civil Aspects of International Child Abduction (known as the 1980 Hague Convention).¹

Underpinning jurisdiction in England and Wales in child abduction is the law of habitual residence. Jurisdiction to try welfare issues usually lies with the state where the child is habitually resident ‘ (see article 3 of the 1980 Hague Convention). This is a fact-dependent issue which can require a detailed analysis of the situation a child has left, and many cases still create enormous difficulty for the court and practitioners.

The legal framework

The Child Abduction and Custody Act 1985 incorporates the 1980 Hague Convention. The International Child Abduction and Contact Unit (ICACU) carries out the interstate obligations in respect of the following:

• the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (known as the 1996 Hague Convention); and
• the 1980 Hague Convention; and, in Europe:
• Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (known as Council Regulation Brussels II Revised).²

The 1980 Hague Convention operates between many countries, including the UK. The convention provides an effective legal framework to achieve prompt return of wrongfully removed or wrongfully retained children to the country from which they have been removed.

The interpretation of ‘wrongful’ is removal or retention in breach of rights of custody which are being exercised by a person, an institution or any other body under the law of the country in which the child was habitually resident immediately before the removal or retention from.

On 1 March 2005, Council Regulation Brussels II Revised above came into effect. This regulation bolsters the 1980 Hague Convention rules within the EU, and applies to parental child abduction within the EU and to the registration and enforcement of orders relating to parental responsibility and contact within the Union.

Habitual residence

The abducting parent will face a challenge. The overwhelming majority of 1980 Hague Convention applications by the left-behind parent will result in the return of the child to their country of habitual residence unless one of the very limited defences are made out by the remover. The child’s welfare is not the court’s paramount consideration: little sympathy is given by the court to parental abductors. Whatever problems the abducting parent may have or tried to avoid by removing the child from the country of residence, the view is that such issues can be dealt with within the country of habitual residence even if the removing parent has been miserable and was nearly broke.

Tests applied to habitual residence: the evolving story

Habitual residence and the issue of which court will have jurisdiction is a fundamental point that must be addressed at the outset of proceedings, ie, as soon as the client walks into your office. The court must address this issue procedurally in an appropriate manner (Re F (A Child) [2014] EWCA Civ 789). The court must only come to a final determination on the issue, having considered both parties’ evidence and heard their submissions.

The test to be applied when determining habitual residence has evolved over recent years. The old UK case law, which stemmed from R v Barnet London Borough ex p Shah (1982) 16 December, HL, was that residence must be voluntary for the sole purpose of being settled.

In contrast, in European law, Mercredi v Chaffe [2010] EUECJ C-497 /10 held that a child’s habitual residence is the state which reflects some degree of integration by the child in a social and family environment. The following points, applied in Mercredi, were key and formed the basis of a new test:

• Proximity, ie, the practical connection between the child and country concerned.
• The degree of integration, taking account of all the circumstances of fact specific to each case.
• Conditions and reasons for the child’s stay, and the child’s nationality.
• In addition to physical presence, other facts must also make it clear that such presence was not in any way temporary or intermittent.
•  The intention of the person with parental responsibility to settle permanently with the child in another state, for example, what steps did they take with regard to the rental or purchase of accommodation?
• Distinguishing habitual residence from mere temporary presence, there must be a certain duration which reflects an adequate degree of stability.
• There is no minimum duration of residence; however, this can serve only as an indicator in the assessment of stability of residence.
• The social and family environment of the child comprises various factors which vary according to the age of the child.

There have been five Supreme Court cases on this subject in the past six years. These cases fundamentally changed the dynamics in relation to testing habitual residence.

In the matter of A (Children) [2013] UKSC 6, the Supreme Court considered whether the High Court had jurisdiction to order a return of a child (to the UK) who had never lived or been in the country. The court ruled that habitual residence required one, unified test to be applied as set out above in Mercredi. The test applied in ex p Shah above was confirmed to be outdated and ‘should be abandoned’ (para 54).

The court confirmed that it was said not be set in stone that a child shares the habitual residence of its parents. Whilst through social and family environment, it was likely to be the same as its parents, the analysis of the child’s integration was fundamental and necessary.

On different facts, In the matter of LC (Children); In the matter of LC (Children) (No 2) [2014] UKSC 1, in which Reunite International Child Abduction Centre intervened› the court held that a child could have separate habitual residence from the resident parent. This is particularly so in the case of teenage children.

More recently, In the matter of B (A child) [2016] UKSC 4, the particular focus of the court was on the point at which a child loses their habitual residence. This was material to whether the English courts had jurisdiction to entertain an application, made on 13 February 2014, concerning a child who had left the UK on 3 February 2014, the mother having intended to relocate to Pakistan permanently.

At first instance, Hogg J found that the respondent and the child had lost their habitual residence on their departure from the UK, although the judge considered it probable that they had not acquired habitual residence in Pakistan at that stage ([2014] EWHC 3017 (Fam)).

In the Supreme Court, Lord Wilson commented that to achieve habitual residence ‘requires not the child’s full integration in the environment of the new state but only a degree of it’ (para 39). His observation was that, in certain circumstances, the requisite degree of integration can occur quickly. The analogy used was to that of a see-saw.

The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one…As probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requite de-integration (or better, disengagement) from it (( emphasis in original) (para 45)).

Most recently, the test was reiterated by Lady Justice Black in Re J (A Child) (Finland) (Habitual Residence) [2017] EWCA Civ 80. The approach set out in In the matter of A (Children) above and In the matter of B above had not been applied by the judge of first instance. Notwithstanding this, it was not necessarily meant to suggest that there was only one way to test habitual residence.

The European Court of Justice confirmed, in May 2017, that even a newborn baby cannot be habitually resident in a state it has never been, even if that is an accident (C-111 /17 PPU). Separately, in a case which shall be proceeding to the Court of Appeal in November 2017, the newborn baby of an English mother was found to have habitual residence in the USA after a mere eight unhappy weeks with the mother.

In addition to the 1980 Hague Convention, habitual residence is equally relevant and important in cases heard under the inherent jurisdiction, ie, wardship proceedings.

Conclusion

Having seen many practitioners’ surprise when, at a hearing in children's proceedings with an international element, the issue of determination of jurisdiction surfaces, the author strongly advises that you must ensure that this is one of the first subjects you raise when a client comes into your office.

The importance of habitual residence should never be underestimated. A vigorous attack or defence on the issue of habitual residence can be the key to litigation outcome.

1 Available at: http://tinyurl.com/y9ex47qj
2 ICACU guidance for lawyers, available at: http://tinyurl.com/yakgl57x. Text of the 1996 Hague Convention, available at: http://tinyurl.com/ybvesrfh. Text of Council Regulation Brussels II Revised, available at: http://tinyurl.com/yctt26gh