UNITED KINGDOM - ENGLAND AND WALES
United Kingdom Supreme Court
Superior Appellate Court
UNITED KINGDOM - ENGLAND AND WALES
UNITED STATES OF AMERICA
4 December 2013
Habitual Residence - Art. 3 | Non-Convention Issues
Appeal allowed, return ordered subject to undertakings
The Court noted that the father could only succeed in his Hague Convention return application under the Convention if the child was habitually resident in the United States of America on either 31 July or 29 August 2012 when the mother's disobedience of the Texan order became wrongful.
The Court acknowledged that not all States Parties to the 1980 Hague Child Abduction Convention applied an identical test to the determination of habitual residence. It referred to its previous judgment on the connecting factor in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening)  UKSC 60,  3 WLR 761 [INCADAT Reference: HC/E/UKe 1233].
The Court noted that whilst the latter case did not concern Hague Convention proceedings, all the parties to the present case were in agreement that the same test for habitual residence should apply in proceedings under the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) and under the 1980 Hague Child Abduction Convention.
There were two good reasons for this: first, the Regulation also dealt with child abduction cases as between member states of the European Union; and, the various international conventions dealing with children formed part of the legislative history of the Council Regulation.
Recalling the essential feature of the test adopted both by the CJEU and the Supreme Court, the Court noted that habitual residence was a question of fact which "should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce".
It added that according to the CJEU (Case C 523/07 proceedings brought by A  ECR I 2805 [INCADAT Reference: HC/E/ 1000], Case C-497/10 PPU Mercredi v Chaffe  ECR I-14309 [INCADAT Reference: HC/E/ 1044]), the concept "corresponds to the place which reflects some degree of integration by the child in a social and family environment".
There was no legal rule, akin to that in the law of domicile, whereby a child automatically took the habitual residence of his parents. The proposition that a young child in the sole lawful custody of his mother would necessarily have the same habitual residence as she did, was to be regarded as a helpful generalisation of fact, which would usually but not invariably be true, rather than a proposition of law.
The Court, referring to the judgments in A v A, noted that it had been questioned whether the English law rule, hitherto firmly established, that where both parents had equal status in relation to the child one could not unilaterally change the habitual residence of a child, should be maintained.
The Court referred to the judgment of the US Court of Appeals for the Ninth Circuit in Mozes v Mozes, 239 F 3d 1067 (9th Cir 2001) [INCADAT Reference: HC/E/USf 301], where it was stated that whilst such a bright line rule certainly furthered the policy of discouraging child abductions, if not carefully qualified it was capable of leading to absurd results.
Nevertheless, the Court clarified that parental intent did play a part in establishing or changing a child's habitual residence: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child's leaving one country and going to stay in another. This would have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another had a sufficient degree of stability to amount to a change of habitual residence.
The Court rejected the father's submission that where a child is permitted to live in a foreign country pursuant to a return order, which is under appeal, the child would not acquire the habitual residence of the parent with whom he was living until the appeal was determined. The Court held that this would be to place a legal gloss on the factual concept. The Court added that the English "rule" against unilateral changes could not in any event apply in such circumstances, as a child's residence could change in the teeth of the opposition of one parent if this was permitted by order of a court.
The Court accepted that the fact that a child's residence was precarious may prevent it from acquiring the necessary quality of stability. But in the present case, every other factor pointed the other way. The Court held that looked at from the point of view of the child, the trial judge had been entitled to hold that the child had become habitually resident in England and Wales by 29 August 2012. The 1980 Hague Child Abduction Convention was not therefore applicable.
The Court noted the 1980 Hague Child Abduction Convention (Article 18) did not limit the power of a judicial or administrative authority to order the return of the child at any time. It had long been established that the High Court had the power under its inherent jurisdiction to order the prompt return of a child who had been wrongfully removed from his home country. Furthermore, in the interests of international comity, the existence of an order made by a foreign court of competent jurisdiction was a relevant factor.
The trial judge had asked whether it was in the child's best interests to leave the mother and London for Texas and the care of the father. The father submitted that this was the wrong question because the father had proposed something different, namely that the child return with the mother so that a Texan court could consider any application the mother might make to modify its 2010 order. Moreover, the father had offered undertakings so that the mother could live separately in Texas and that care of the child be shared by the parents.
The Supreme Court noted that whilst the Court of Appeal had acknowledged that the trial judge should ideally have referred to the father's protective undertakings, it did not address the point that the trial judge had asked the wrong question. The Supreme Court therefore held that it was entitled to ask the correct question, namely, was it in the child's best interests to remain in the United Kingdom so that the dispute between the parents was decided there or to return to Texas so that the dispute could be decided there?
The Court considered the competing factors. It held that the crucial factor was that this was a Texan child who was being denied a proper opportunity to develop a relationship with his father and his country of birth. The Court considered that the child's best chance of developing a proper relationship with both parents, and with his country of nationality, was for the Texas court to consider where his best interests lay in the long term.
The Court held that despite the passage of time, there was not the slightest reason to consider that the child would suffer any significant harm by returning to Texas on the basis proposed by the father.
Author of the summary: Peter McEleavy
See also: Larbie v Larbie, 690 F.3d 295 (5th Cir. 2012) [INCADAT Reference: HC/E/USf 1236] and A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening)  UKSC 60,  3 WLR 761 [INCADAT Reference: HC/E/UKe 1233].
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.
When a parent seeks the return of a child outside the scope of the Hague Convention, or another international or regional instrument, the court seised will have to decide how to balance the interests of the child with the general international policy of combating the illicit transfer and non-return of children abroad (Art. 11(1) UNCRC 1990).
Shortridge-Tsuchiya v. Tsuchiya, 2009 BCSC 541,  B.C.W.L.D. 4138, [INCADAT cite: HC/E/CA 1109].
United Kingdom - England & Wales
Appellate courts have struggled to agree on the appropriate balance to be struck.
An internationalist interpretation, favouring an approach mirrored on that of Hague Convention, was adopted by the Court of Appeal in:
Re E. (Abduction: Non-Convention Country)  2 FLR 642 [INCADAT cite: HC/E/UKe 589];
Re J. (Child Returned Abroad: Human Rights)  EWCA Civ. 417,  2 FLR 85 [INCADAT cite: HC/E/UKe 586].
However, in the earlier case Re J.A. (Child Abduction: Non-Convention Country)  1 FLR 231 [INCADAT cite: HC/E/UKe 588] a return order was not made, there being concerns as to whether the legal system in the foreign jurisdiction would be able to act in the best interests of the child. A factor in that case was that the abducting mother, who was British, would not be entitled to relocate from the child's State of habitual residence unless she had the consent of the father.
In Re J. (A Child) (Return to Foreign Jurisdiction: Convention Rights),  UKHL 40,  1 AC 80, [INCADAT cite: HC/E/UKe 801] the House of Lords expressly stated that the approach of the Court of Appeal in Re J.A. (Child Abduction: Non-Convention Country)  1 FLR 231 [INCADAT cite: HC/E/UKe 588] was the one to be preferred.
The House of Lords held that the rationale of the Hague Convention necessarily meant that the State of refuge might on occasion have to do something which was not in the best interests of the individual child involved. States parties had accepted this disadvantage to some individual children for the sake of the greater advantage to children in general. However, there was no warrant, either in statute or authority, for the principles of the Hague Convention to be extended to countries which were not parties to it. In a non-Convention case the court must act in accordance with the welfare of the individual child. Whilst there was no ‘strong presumption' in favour of return on the facts of an individual case a summary return may very well be in the best interests of the individual child.
It may be noted that in Re F. (Children) (Abduction: Removal Outside Jurisdiction)  EWCA Civ. 854,  2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982] a trial judge who felt compelled to discharge his original order for return in the light, inter alia, of the ruling in Re M. had his judgment overturned. The Court of Appeal did not, however, comment on the ruling of the House of Lords and the case ostensibly turned on the existence of new evidence, pointing to the inevitability of the mother's deportation.
In E.M. (Lebanon) v. Secretary of State for the Home Department  UKHL 64,  1 A.C. 1198 [INCADAT cite: HC/E/UKe 994] an immigration case centred around the wrongful removal of a child from a non-Convention country, the House of Lords ruled that a return would lead to a violation of the child's and his mother's right to family life under Article 8 of the European Convention on Human Rights (ECHR). However, it must be noted that on the facts the child's only ‘family life' was with the mother, the father having had no contact with the child since the day of his birth. A majority of the panel (4:1) held that the discriminatory nature of Lebanese family law, which would have led to the automatic transfer of care for the child being passed from mother to father, upon the child reaching his 7th birthday, would not have led to a breach of the ECHR.