Habitual Residence -- Personal Law Connecting Factors (L10) Flashcards
What is the definition of habitual residence given in Cruse v Chittum [1974]?
“A regular physical presence which must endure for some time”.
What is the definition of habitual residence given in R v London Borough Council ex parte Shah [1983]?
“A habitual residence is one which is being enjoyed voluntarily for the time being and with a settled intention that it should continue for some time”.
What is the definition of habitual residence given in Re J (A Minor) (Abduction) [1990]?
“An appreciable period of time and a settled intention will be necessary …
What do the varying definitions of habitual residence within UK law show?
That it is a fragmented concept, unlike that of domicile.
What did Baroness Hale say about habitual residence in A v A (Children) (Habitual Residence) [2013] UKSC 60?
“All are agreed that habitual residence is a question of fact and not a legal concept such as domicile” ([54]).
“ … The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.”
What does the case of In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1 tell us about intention in terms of habitual residence?
Intention is not relevant to habitual residence e.g. you cannot intend to be habitually resident.
What are the facts of Proceedings brought by A (Case C-523/07) [2010] Fam 42 [CJEU]?
Proceedings brought from Finland. Rule of jurisdiction that in parental responsibility matters the place of habitual residence of the child has jurisdiction.
The mother, children and stepfather lived in Sweden. They went on holiday to Finland and ended up staying there in various caravans, moving around. Children did not attend school.
The parents left the children in Finland and they returned to Sweden. Local welfare facility took the children into their care.
Mother challenged their entitlement to do that.
What did the ECJ say about the meaning of habitual residence in Proceedings brought by A (Case C-523/07) [2010] Fam 42 [CJEU]?
“[I]n addition to the physical presence of the child in a Member State other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent …. the concept of ‘habitual residence’ under Article 8(1) of Regulation No 2201/2003 must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.”
How did the ECJ define habitual residence in Mercredi v Chaffe (C-497/10 PPU) [2012] Fam. 22?
“53. The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant.
54. As a general rule, the environment of a young child is essentially a family environment determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of.
55. That is even more true where the child concerned is an infant. An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent.”
How has the UKSC responded to the ECJ definition of habitual residence?
UKSC-approved in:
A v A (Children) (Habitual Residence) [2013] (per Baroness Hale).
Re LC (Children) (International Abduction: Child’s Objections to Return) [2014] (per Baroness Hale).
Stated that the UK had their own jurisprudence on the matter, but if looking for a coherent definition, the European one should be used.
