UNITED KINGDOM - SCOTLAND
17 November 2011
Habitual Residence - Art. 3 | Procedural Matters
Appeal allowed, application dismissed
The Supreme Court held that in the context of Hague Conventions, habitual residence referred to the place where a person actually resides and where his main environment is actually located. It added that the same principles applied to habitual residence in the context of the Brussels II a Regulation. In determining habitual residence consideration must be given to objective facts, such as the duration and continuity of residence, as well as social ties and other similar facts relating to the individual or his or her profession.
The Court held that the intention of a person to remain in or leave the State of residence may be of significance, although it added that this factor may have less weight than the previously mentioned factors. In the case of young children significance must also be given to the habitual residence of the custodians as well as to family ties and other social relationships.
The Court further affirmed that habitual residence must be interpreted consistently with the objectives of the Hague Convention and the Brussels II a Regulation. In this it noted that the main objective of the Hague Convention is to protect children from the harmful effects that arise from abduction by a parent and to bring about a prompt return to the original state of habitual residence.
Additional facts were presented in the Supreme Court judgment. For the mother it was submitted that the holiday in Scotland was to aid the father's recuperation and it was after 3 weeks there that he declared he would not be returning to Finland.
The mother explained that she went along with a longer stay because she was on maternity leave and had no immediate need to return. She also thought it was possible the father would change his mind. She also stated that the father and paternal grandmother had declared the children could not be removed from Scotland.
Reviewing the evidence the Court noted: the family had left a furnished flat in Finland, which the mother owned jointly with her sister; neither parent had submitted a change of address notification to the Finnish authorities, which they knew was obligatory; it was in January 2008 that the father advised the Finnish authorities of the termination of his business operations; documentary evidence showed the mother announced her intention of returning with the children fairly soon after arriving; and the father had stayed with his sister from time to time and prior to the mother's departure he had moved in with the paternal grandmother.
In the light of the evidence the Supreme Court ruled that it could not be concluded that the mother had intended to stay in Scotland, even for the time being. It was therefore unclear what the parents' joint intention was when they went to Scotland and during their stay there.
As regards the ties made with Scotland during the stay, the Court held that neither registration with the health service nor the part-time use of day care facilities was significant. The Court ruled that during their six month stay the children had not established any social ties of the kind that could be regarded as having changed their habitual residence from Finland to Scotland. The appeal was therefore allowed and the return application dismissed.
The Court held that given the circumstances leading to the proceedings, the father's financial position and the significance of the matter for him, it would be unreasonable to order him to compensate the State for the costs awarded to the mother's.
Author of summary: Peter McEleavy
The ruling of the Court of Appeal is found at: Helsinki Court of Appeal, 1 October 2008, Decision No 2764 [INCADAT Reference: HC/E/FI 1088].
The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.
Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.
United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.
Child Centred Focus
The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:
Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]
Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].
Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].
Combined Child's Connection / Parental Intention Focus
The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.
The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].
Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].
In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.
Parental Intention Focus
The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.
This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:
Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;
Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;
Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.
The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:
Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];
Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].
It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.
There are variations of approach in other jurisdictions:
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).
8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].
In the Province of Quebec, a child centred focus is adopted:
In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.
A child centred, factual approach is also evident in German case law:
2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].
This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:
Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998 [INCADAT Reference: HC/E/DE 233].
The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:
Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];
Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].
However, reference has been made to a more child centred approach in other cases. See:
decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;
FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See
S.K. v. K.P.  3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].
A child centred, factual approach is evident in Swiss case law:
5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.
Re J. (A Minor) (Abduction: Custody Rights)  2 AC 562,  2 All ER 961,  2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:
R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;
R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.
Where there is clear evidence of an intention to commence a new life in another State then the existing habitual residence will be lost and a new one acquired.
In common law jurisdictions it is accepted that acquisition may be able to occur within a short period of time, see:
DeHaan v. Gracia  AJ No.94 (QL),  ABQD 4, [INCADAT cite: HC/E/CA 576];
United Kingdom - England & Wales
Re J. (A Minor) (Abduction: Custody Rights)  2 AC 562 [INCADAT cite: HC/E/UKe 2];
Re F. (A Minor) (Child Abduction)  1 FLR 548, [INCADAT cite: HC/E/UKe 40].
In civil law jurisdictions it has been held that a new habitual residence may be acquired immediately, see:
Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 15 novembre 2005, 5P.367/2005 /ast, [INCADAT cite : HC/E/CH 841].
Where parental agreement as regards relocation is conditional on a future event, should an existing habitual residence be lost immediately upon leaving that country?
The Full Court of the Family Court of Australia answered this question in the negative and further held that loss may not even follow from the fulfilment of the condition if the parent who aspires to relocate does not clearly commit to the relocation at that time, see:
Kilah & Director-General, Department of Community Services  FamCAFC 81, [INCADAT cite: HC/E/AU 995].
However, this ruling was overturned on appeal by the High Court of Australia, which held that an existing habitual residence would be lost if the purpose had a sufficient degree of continuity to be described as settled. There did not need to be a settled intention to take up ‘long term' residence:
L.K. v. Director-General Department of Community Services  HCA 9, (2009) 253 ALR 202, [INCADAT cite: HC/E/AU 1012].
Where a move is open ended, or potentially open ended, the habitual residence at the time of the move may also be lost and a new one acquired relatively quickly, see:
United Kingdom - England and Wales (Non-Convention case)
Al Habtoor v. Fotheringham  EWCA Civ 186, [INCADAT cite: HC/E/UKe 875];
Callaghan v. Thomas  NZFLR 1105 [INCADAT cite: HC/E/NZ 413];
United Kingdom - Scotland
Cameron v. Cameron 1996 SC 17, 1996 SLT 306, 1996 SCLR 25 [INCADAT cite: HC/E/UKs 71];
Moran v. Moran 1997 SLT 541 [INCADAT cite: HC/E/UKs 74];
United States of America
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006), [INCADAT cite: HC/E/USf 879].
Preparation of INCADAT commentary in progress.