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Essential element for ‘habitual residence’ is the quality of stability, upheld

Supreme Court of United Kingdom- Deciding on the issue whether the court should order the return to France of two little girls who have been living with their mother in Scotland since July 2013, the Court unanimously dismissed the appeal filed by the father and observed that, for the purposes of ‘habitual residence’, the stability of residence, rather than its degree of permanence, is important. The present appeal before the Court concerns the application of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’) which states that it is unlawful to remove or retain a child in breach of rights of custody attributed to a person under the law of the state in which the child was ‘habitually resident’ immediately before removal or retention. The Court, hence, delved into the discussion as to what elements constitute a ‘habitual residence’ and noted that for the purposes of applying the Hague Convention, ‘habitual residence’ is to be determined in accordance with the guidance given in A v A [2014] AC 1, In re L and In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1; [2014] AC 1038.

The facts in the instant state, two small children, born and raised in France, were brought to Scotland by their mother in July 2013 with the consent of their father, who remained in France. The mother and children were to live in Scotland for the period of about a year. In November 2013, the relationship between the parents ended. On 20 November 2013, the mother commenced proceedings in which she sought a residence order in respect of the children and an interdict against the father removing them from Scotland. The father argued that it was a wrongful retention within the meaning of the Convention on the basis that the children were habitually resident in France immediately before proceedings commenced. The Outer House of the Court of Session concluded that the children were habitually resident in France on 20 November 2013 and decided in favor of the father while the Inner House found that the children were habitually resident in Scotland at the material time.

Lord Reed giving the unanimous judgment observed that parental intentions in relation to residence in the country in question are a relevant factor, but they are not the only relevant factor. The Court further noted the factors that the children moved with their mother to Scotland and that was where they lived, for what was intended to be a period of 12 months; their life there had the necessary quality of stability as their family as well as social life there. The longer time went on, the more deeply integrated the children had become into their environment in Scotland, thus the children were habitually resident in Scotland. [AR V. RN, [2015] UKSC 35, decided on 22.05.2015]

 Article referred: http://blog.scconline.com/post/2015/06/04/essential-element-for-habitual-residence-is-the-quality-of-stability-upheld.aspx

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