High Court rules on ‘habitual residence’ in multinational children’s cases
‘Habitual residence’ means the place where a person usually lives and is a legal concept used to determine which laws should apply in multinational cases and where such cases should be held.
The case of DL v EL concerned an American husband and British wife. They married in 2005 and lived in Texas, where their child KL was born in 2006. The couple separated in 2008 and the mother returned to theUK. However, when the divorce was finalised in 2010, a court in Texas awarded custody of the child to the father.
The mother did not appeal against the decision of the Texas court. Instead she launched proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, claiming that the child had been habitually resident with her in the UK at the time the court had awarded custody to the father. The US courts ruled in her favour and the child was returned to the mother. She then returned to the UK for a second time, where she applied for an order granting the status of ‘resident’ parent (the parent with whom a child lives).
Meanwhile the father appealed the US court’s decision under the Hague Convention and in July last year, the US Court of Appeals 5th Circuit ruled in his favour, ordering the mother to return the child to the US and the custody of his father. The mother appealed this decision to the US Supreme Court and a decision is pending.
However, the father also applied for a return order under the Hague Convention, claiming the child had been unlawfully detained by the mother, and also questioning the basis of the UK court’s ‘inherent jurisdiction’ – ie. whether the UK courts had any right to rule in the case.
This application became before Sir Peter Singer in the Family Division of the High Court. He considered but rejected a claim that the return of the child to the mother’s care after her successful Hague application had retrospectively become unlawful after the father’s successful appeal.
The judge decided that the central issue in the question of whether or not the mother had unlawfully detained the child was the child’s habitual residence. The court came to the decision that the child had been resident in the UK at the time the father appealed the Hague ruling, notwithstanding the court’s later decision to rule in the father’s favour.
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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