When parents come from different parts of the world or have homes in more than one country, it’s sometimes difficult to agree on child arrangements after a separation or divorce. In extreme cases one parent might remove a child from their normal place of residence in the UK and take them to live abroad. To do this without the other parent’s consent amounts to international child abduction.
At Brookman we are international family law specialists. We have many years of experience handling cases of abduction under the Child Abduction and Custody Act, 1985 (which implements the Hague Convention into UK law). These cases are complex and often bitterly contested, and urgent legal advice is often required. Here we look at what’s meant by ‘habitual residence’ – often the determining factor in deciding cases where a child has been taken from the UK without a parent’s agreement.
(Note that different rules will apply if a child has been removed from his or her usual home and taken to another part of the UK.)
What Is Habitual Residence?
International child abduction cases involve an analysis of the child’s ‘habitual residence’. For the courts this is a question of fact. It’s not a legal concept like domicile. In deciding where a child habitually resides, courts take the following into account:
- All the circumstances of the individual case. This entails a global analysis of the child’s situation
- Whether there is a temporary aspect to a child’s presence in a particular country
- The degree to which the child is, from a social and family perspective, integrated into a particular place. A child does not need to be fully integrated for habitual residence to exist
- How far any adult on whom the child depends is integrated into the country concerned
- Whether the parents have demonstrated an intention to settle in a particular place
- The duration, regularity and reasons for the child’s stay in the particular territory
- The place and conditions of the child’s attendance at school
- The family and social relationships of the child in the particular country
Overall what is important in determining where a child resides is stability. This does not necessarily mean a child is permanently resident in a particular place. As the factors above demonstrate what matters is how far a child has integrated into the country as opposed to a simple mathematical calculation of the time a child spends in a particular location.
FB and MG (2022): Where Was Child Habitually Resident?
In 2022 the High Court applied the factors above in the case of FB and MG. Ultimately it decided that a boy born in January 2021 was habitually resident in the UK despite the father’s claim that he should be considered resident in Israel.
The parents had met after the mother moved from the UK to Israel. She had obtained Israeli citizenship but returned to the UK to give birth and remained there afterwards with her new-born son. The father issued proceedings for the immediate return of his son to Israel.
The case is interesting because it shows how the courts look at habitual residence where a very young child is involved. The case is also notable in that:
- During his short life the child travelled extensively between London and Israel
- At the relevant time Covid restrictions in travel could have forced the mother and child to spend more/less time in Israel than they might otherwise have done
- Neither parent had their own settled home
- The parents were separated for large parts of their marriage, including the key 21 months of the child’s life
What Did The Court Decide?
The judge indicated that he was ‘not unsympathetic; to the father’s case. The mother had been habitually resident in Israel since 2017 so he could have reasonably expected her to make Israel her permanent home. However the judge decided that her emotional connection remained with England. She had spent all her life there until 2017, a significant part of her life there between 2017-2021, and the significant majority of her life since January 2021 had been spent in England.
As for the habitual residence of the child, the judge found that this was in England. In reaching this conclusion the judge highlighted that:
- The child had spent only about one-quarter of his life in Israel
- London is where he had a meaningful wider family network
- He had an extensive and varied programme of age-appropriate activities in London
- Throughout his life his medical needs had been met in London
- He has always been in the primary care of his mother whose habitual residence was in England.
FB and MG demonstrates how the principles of habitual residence can be applied to reach at a clear-cut decision – even in the case of an infant who has travelled internationally throughout his very short life.
International child abduction is traumatic for all involved. If a child is removed, it’s critical to immediately contact the police who can liaise with Interpol and other international authorities. You should also get in touch with an experienced family lawyer as a matter of urgency.