Many of the divorces we deal with have an international aspect. The issue of child residence sometimes becomes more complicated when parents live in different countries.
This is particularly the case when one or both parents have entrenched views on where the child should live. Tabloid coverage throughout 2016 of the dispute between Madonna and her ex-husband Guy Ritchie over the residence of their 15-year-old son demonstrates how acrimonious these cases can become.
Helpfully, in a recent case the High Court provided a clear message on the subject which will help provide further clarity for parents in this type of case. The remarks of the judge are so direct that failure to follow them in future might well be viewed unfavorably. So it’s worth considering the key points..
Habitual Residence: Factors To Consider
The message that comes through loud and clear to parents is that the process of determining residence must always be child driven. According to the judge “the child is at the centre of the exercise when evaluating his or her habitual residence”.
This means looking in detail at things like:
- The child’s day to day life and experiences
- Family environment
- Interests and hobbies
- The adults who play an important role in the child’s life
What To Avoid
What tends to happen in some cases is that arguments presented to the court centre on the parents and their opinions on residence. Of course, the threat of your child living permanently in a different country is frightening. It is only natural to want to argue forcefully against it and make all the points you think are necessary.
But this might not always be the best approach.
In this case the judge highlighted that the statements provided to the court focused predominantly on the adult parties. To reach a decision, he had to search for the essential information he needed about the child’s life and routine.
In the words of the judge, the issue of habitual residence is all about the life of the child – not about parental dispute.
Sometimes it is easy to be critical of judges for not being sufficiently clear. But this case provides welcome, unambiguous guidelines. The choice of solicitor in these cases remains of crucial importance. A lawyer experienced with children and international residence disputes will fully understand that the exercise is first and foremost a factual one.
At Brookman Solicitors in London we aim to find constructive solutions to family disputes. With a disciplined approach we work hard to identify where the child is habitually resident. Often we are able to establish this without asking the court to intervene.
If you would like to find out more about how we can help, please call us on + 44 (0)20 7430 8470 or contact us online.