Stability, not intention, key to habitual residence, Supreme Court rules

For the purposes of habitual residence under the Child Abduction Convention, the stability of residence, rather than its degree of permanence, is important, the UK Supreme Court ruled today.

Five justices unanimously upheld a decision of the Court of Session to refuse the petition of a father for the return of his two children to France, after their mother raised court proceedings to secure their residence in Scotland. The mother had brought the children to Scotland in July 2013, with the father's consent, with the intention that they would live there for about a year. The parties' relationship ended in November 2013; the mother then began her proceedings and the father sought the children's return under the Convention on the basis that the mother's actions constituted a wrongful retention.

At first instance the judge held that the children were still habitually resident in France as at November 2013 because the move to Scotland had not been intended to be permanent. The Inner House reversed this, holding that shared intention of permanent resident was not essential to an alteration of the children's habitual residence. On appeal the father argued that the Outer House judge had been correct, and in any event that the Inner House had taken the wrong approach.

Lord Reed, with whom Lady Hale, Lord Clarke, Lord Wilson and Lord Hughes agreed, said that there was no requirement that a child should have been resident in the country in question for a particular period of time, or that one or both parents intend to reside there permanently or indefinitely. The court had previously held in a series of cases that habitual residence was a question of fact which required an evaluation of all relevant circumstances.

In determining habitual residence, the focus was on the situation of the child, the intentions of the parents being merely one of the relevant factors. It was necessary to assess the degree of the integration of the child (or its carers in the case of an infant or young child) into a social and family environment in the country in question. There was no rule that one parent could not unilaterally change the habitual residence of a child.

In the present case, the children were habitually resident in Scotland within the meaning of the Convention. The important question was whether the residence had the necessary quality of stability, not whether it is necessarily intended to be permanent, and following the children’s move with their mother to Scotland, their life there had this quality. Their home was Scotland for the time being; their social life and much of their family life was there. The longer time went on, the more integrated they became into their environment in Scotland.

Given this conclusion, the question of wrongful retention did not arise.

Click here to view the judgment.