When parents live in separate countries, the concept of ‘habitual residence’ is pivotal to where the child will ultimately live. Establishing habitual residence is essential to the child’s wellbeing, sense of security and development. Settling the issue also provides clarity and certainty for both parents.

In the context of an acrimonious divorce or separation deciding child residence can polarise the parties. If international child residence is something that concerns you it’s advisable to get specialist legal advice from a family law solicitor. Before the courts in a particular jurisdiction can decide matters relating to an individual child, habitual residence must be established.

Here we look at the way courts approach disputes over child residence and we examine how habitual residence may be verified in cases where the question of where a child should live is in dispute.

In Disputes Over Relocation The Children Come First

Disputes over international child residence may occur before the child leaves the jurisdiction of England and Wales. In such a scenario the parent wishing to move abroad with the child must either agree the move with the other parent or obtain a court order approving the relocation. In making orders in cases like this the welfare of the child is paramount, and the courts will consider matters such as the child’s wishes, his or her educational and emotional needs and the likely effect any relocation will have.

It’s up to the parent wishing to ensure the child remains in England and Wales to establish that international relocation will have a negative impact on the child.

International Child Residence:  The ‘See-Saw’ Approach

The factors to consider when deciding whether a child can live in the UK or abroad using the habitual residence principle are numerous, and they must be applied separately to the facts of each case. It’s therefore sometimes difficult to give clients hard and fast rules about habitual residence to help them decide their approach to an international child residence case. However the analogy of a see-saw, used by the Supreme Court judge Lord Wilson in the 2016 case of the matter of B (A child) is particularly useful. In that case, the court was asked to decide whether a seven-year old girl had lost her habitual residence in the UK. She had been taken to Pakistan by her mother at the age of five so had been outside of the UK for two years at the time of the Supreme Court hearing.

Lord Wilson suggested that, in the same way either side of a see-saw moves up and down, so too can the location of a child’s habitual residence alter. A child that moves abroad will put down roots (possibly quite quickly) in a way that may establish habitual residence. According to the analogy this is represented by the side of the see-saw that moves downward toward the ground. At the same time, the roots in the first country (represented by the side of the see-saw that moves up from the ground) will become looser so that the child disengages from that first country.

The see-saw principle continues to be applied. In M (Children) (2020) a German father was attempting to have his children returned from England to Germany, the country in which the family had lived before the parents separated.

The Court of Appeal, in applying the see-saw analogy decided the children should stay in England. It considered the following:

  • The children had moved to England with their primary carer in July 2018
  • They went to school in England
  • They established themselves in England quickly because they were familiar with the location they had moved to
  • It was the court’s view that the children had become integrated to a very substantial degree

Why does habitual residence matter?

When a child gains a new habitual residence, he or she loses the old one. In the case of In the matter of B mentioned above Lord Wilson pointed out that a child without habitual residence is placed in a legal limbo. Habitual residence confirms where the centre of a child’s interests lies. Crucially it dictates which country’s law is applied to a dispute involving the child, including disputes under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

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