We have been alerted to some less than perfect summaries of the law around international child abduction by the BBC recently. When a child is abducted to a foreign country away from their other parent, two things are a given: emotions will be running high and the law will be tricky.
Mistakes in news and media coverage of the topic often fall down around the explanations of ‘habitual residence’, a term which has a particular legal meaning (and which has seen many lawyers and judges in a tangle) – and which is of crucial importance to whether a child has technically been ‘abducted’ at all, and whether they should be sent back ‘home’.
On 2 August the BBC reported :
In it they say :
Under the Hague Convention, which governs cases of child custody waged across international borders, a child’s base is considered to be the country in which he or she has lived longest.
In Tracy’s daughter’s case, this was the Czech Republic, where she had lived for seven years.
This made it hard for Tracy to make a legal argument for her daughter to be returned to Bradford.
This appears to be an attempt to summarise habitual residence. It’s wrong. Habitual residence is not decided on which country a child has lived longest in. Of course the media need to summarise the law when they are referring to it in a news item, but it’s really important that these summaries are accurate – public understanding of what might amount to abduction is already low, and someone getting this sort of thing wrong could be committing a criminal offence. A parent who assumed that they were safe to remove a child to another country because they have previously lived there for three years, even though they have more recently lived in this country for two years, would be on uncertain territory. The child would not necessarily be habitually resident in the other country (and is actually probably far more likely to be habitually resident in the place they have been for the last two years).
So, what IS habitual residence and why does it matter?
We’re not going to try and give you chapter and verse on this – as we’ve said it IS complicated and the courts have looked at this and refined the definition many times over recent years. The key thing to remember is that habitual residence is fact specific. Children don’t have a label on them like a ‘Made in China’ stamp that tells you once and for all that they are habitually resident in one country or another – where a child is habitually resident depends on the unique facts of each case and can change over time. Where there is a dispute, the court must decide where they are habitually resident after sifting through all the facts.
We’re going to talk about cases involving possible abductions between two of the many countries which have both signed up to the Hague Convention on Child Abduction or between EU member states – different rules and definitions may apply in other countries, although there are some similarities. The Hague Convention and European Regulations in essence set up systems for working out which country’s courts should sort out cross border disputes about children, and for the (relatively) speedy return of children from the place where a child has been abducted to, back to the place where they have been abducted from. In general terms once it has been established that a child is abducted, the courts in the receiving country must send the child back home for the home courts to deal with the matter – but there are exceptions to this rule.
A child will only have been ‘abducted’ (in the sense of an international abduction rather than just taken away from a parent when they shouldn’t have been) if they have been wrongfully removed (or kept) from their place of habitual residence. So, if a child is in (say) France on holiday, but is taken back to their home in England where they have lived all their life (and are habitually resident) they haven’t been abducted. If a child is in France and has always lived in France (and they are habitually resident there), and they are taken to England without the agreement of both parents – that might well be an abduction. So, you can see that its critical to work out where a child is habitually resident to see if the left behind parent can rely upon the Hague Convention for help getting them back in country where they can ask the local courts to help sort things out.
One useful judgment which summarises what habitual residence means is this one from Mr Justice Hayden : B (A Minor: Habitual Residence)  EWHC 2174 (Fam). In it Hayden J says that ‘habitual residence of a child is all about his or her life and not about parental dispute. It is a factual exploration’ and he gives this guidance [we’ve added our own plain English explanation in square brackets] :
i) The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (A v A, adopting the European test). [it’s partly about where and how well the child is integrated]
ii) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. It must be emphasised that the factual enquiry must be centred throughout on the circumstances of the child’s life that is most likely to illuminate his habitual residence (A v A, Re KL). [it all depends on the facts]
iii) In common with the other rules of jurisdiction in Brussels IIR its meaning is ‘shaped in the light of the best interests of the child, in particular on the criterion of proximity’. Proximity in this context means ‘the practical connection between the child and the country concerned’: A v A(para 80(ii)); Re B (para 42) applying Mercredi v Chaffe at para 46). [look at the practical connection between the child and the country in question]
iv) It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent (Re R); [one parent can, deciding on their own to take the child abroad, cause a change of habitual residence (but not necessarily)]
v) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (Re LC). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused. It is the child’s habitual residence which is in question and, it follows the child’s integration which is under consideration. [child usually has same habitual residence as parent, especially younger ones – but it depends]
vi) Parental intention is relevant to the assessment, but not determinative (Re KL, Re R and Re B); [parental intention relevant – but isn’t necessarily the whole answer]
vii) It will be highly unusual for a child to have no habitual residence. Usually a child loses a pre-existing habitual residence at the same time as gaining a new one. [a child almost always has habitual residence somewhere]
viii) In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move (Re B – see in particular the guidance at para 46); [when looking at whether a move has caused a change of habitual residence, look at the degree of connection with the previous place, before the move]
ix) It is the stability of a child’s residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there (Re R and earlier in Re KL and Mercredi); [look at stability not permanence – integration not length of time]
x) The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident (Re R) (emphasis added); [child doesn’t need to be fully integrated to become habitually resident somewhere]
xi) The requisite degree of integration can, in certain circumstances, develop quite quickly (Art 9 of BIIR envisages within 3 months). It is possible to acquire a new habitual residence in a single day (A v A; Re B). In the latter case Lord Wilson referred (para 45) those ‘first roots’which represent the requisite degree of integration and which a child will ‘probably’ put down ‘quite quickly’ following a move; [habitual residence can – sometimes – change quite quickly after a move]
xii) Habitual residence was a question of fact focused upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It was the stability of the residence that was important, not whether it was of a permanent character. There was no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely (Re R).
xiii) The structure of Brussels IIa, and particularly Recital 12 to the Regulation, demonstrates that it is in a child’s best interests to have an habitual residence and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual residence; As such, “if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former” (Re B supra);
The BBC report
Our thanks to both Madelaine Hailey and James Turner QC for flagging this for us.
What a shame that the BBC has had the benefit of soundbites from one of the country's leading Hague solicitors but has failed to report the law accurately #childabduction
BBC News – 'My ex secretly took our child out of the country' https://t.co/ZETXNZtxeC
— Madelaine Hailey (@madelainehailey) August 2, 2018
And at the same time you might deal with the BBC’s idea that a child’s “habitual residence” is the place where it has lived for longest during its life : pic.twitter.com/ogdQ0QCsui
— James Turner QC (@JamesTurner37) August 2, 2018
Incidentally, the BBC were correct in this case to refer to custody – its a legal oddity that, whilst in English law the term ‘custody’ was abolished over thirty years ago (although its use continues, it is inaccurate), in cases involving international child abduction the term has been retained in the international treaties that regulate such cases, because it has a more translatable meaning. So, whilst we often grumble about the legally inaccurate use of the term ‘custody’ in news coverage in this case the BBC were quite right. We’d rather they had been more careful about habitual residence, though.
Where can I get help or advice about abduction?
Warning – Seesaw ahead (Colin Whittaker – Creative Commons – thanks!)