Habitual residence in the text of the Convention

The concept of habitual residence is relevant in the Hague Child Abduction Convention for several reasons.

Authority in the country of habitual residence?

First, Article 3 provides that the removal or failure to return the child shall be considered wrongful where it is in violation of a right of custody granted to a person, an institution or any other body, either alone or jointly, under the law of the State in which the child had his or her habitual residence immediately before his or her removal or detention.

The abducted child’s place of residence must therefore be established, in order to know whether or not it was abduced from that state and to determine whether (joint) custody exists under the law of that State.

Habitual residence in memberstate?

Article 4 of the Hague Convention on Child Abduction provides that the Convention applies to any child who was habitually resident in a Contracting State immediately prior to the breach of rights of custody or access.

If you can show that the child’s habitual residence has transferred to the state where he or she now resides, a return order can be avoided.

The interpretation of the term

Of course, the intention is that the concept of habitual residence should be interpreted the same by all member states, but in practice this is not always the case.

The concept of habitual residence must be determined on the basis of all the facts and circumstances of the concrete case.
How exactly this is weighed depends on the case law in the country where the case is heard.

Habitual residence
in cases of the European Court of Justice

Decision making model

Habitual residence: factors

A child’s place of habitual residence is the place which, in practice, is the centre of that child’s life. It is for the national court to determine, on the basis of a consistent body of evidence, where that centre was located at the time the application concerning parental responsibility over the child was submitted (European Court of Justice (ECJ), 28 june 2018, C-512-17).

In that regard, in a case such as that in the main proceedings, having regard to the facts established by that court, the following, taken together, are decisive factors:

–        the fact that, from its birth until its parents’ separation, the child generally lived with those parents in a specific place;

–        the fact that the parent who, in practice, has had custody of the child since the couple’s separation continues to stay in that place with the child on a daily basis and is employed there under an employment contract of indefinite duration; and

–        the fact that the child has regular contact there with its other parent, who is still resident in that place.

By contrast, in a case such as that in the main proceedings, the following cannot be regarded as decisive:

–        the stays which the parent who, in practice, has custody of the child has spent in the past with that child in the territory of that parent’s Member State of origin in the context of leave periods or holidays;

–        the origins of the parent in question, the cultural ties which the child has with that Member State as a result, and the parent’s relationships with family residing in that Member State; and

–        any intention the parent has of settling in that Member State with the child in the future.

Integration in social and family environment

The primary residence is the place that expresses some integration of the child into a social and family environment. To this end, it is necessary to take into account, among other things:

  • the duration, regularity, circumstances and reasons for the stay in the territory of a State and for the relocation of the family to that State
  • the nationality of the child
  • the place and conditions of attendance at school
  • which languages are spoken
  • the child’s family and social ties in that State.

Infant

If an infant has recently moved with his mother to another country, the geographical and familial roots of the parent with whom the child effectively lives and by whom he is actually cared for and the familial and social ties that this person and the child have in the state should be taken into account in assessing whether there is some integration of the child into his social and familial environment (ECJ 22 December 2010, C-497/10, Mercredi). However, as you could read above, the Court has also ruled that if the parents are separated, the family environment in which the child is integrated can also be formed by both parents, provided there is regular interaction with the other – non-caring – parent (ECJ June 28, 2918, C-512/17).

Physical presence

The physical presence of a child in a member state is a necessary condition for assuming the habitual residence of that child in that member state (ECJ February 15 2017, C-499/15).

Physical presence over intention

When a child has been born and has lived continuously with her mother for several months, in accordance with the joint wishes of her parents, in a Member State other than that where those parents were habitually resident before her birth, the initial intention of the parents with respect to the return of the mother, together with the child, cannot allow the conclusion that that child was ‘habitually resident’ in the country where she was supposed to return to (ECJ 17 October 2918, C-393/18).

Habitual residence in cases of the U.S. Supreme Court

A totality of circumstances specific to the case

The Supreme Court gave a clear decision on the issue of habitual residence in the case Monasky v. Taglieri (February 25, 2020).

The case concerns a U.S. woman and an Italian man, who moved to Italy, where the daughter was born. Shortly after, the woman fled with the infant to Ohio. The man asked for a return order. The woman argued that Italy could not qualify s the habitual residence, because there was no actual agreement by her parents to raise her there.  

The Supreme Courts discusses the issue of habitual residence as follows:

(a) The inquiry begins with the Convention’s text “and the context in which the written words are used.” Air France v. Saks470 U.S. 392, 397. The Convention does not define “habitual residence,” but, as the Convention’s text and explanatory report indicate, a child habitually resides where she is at home. This fact-driven inquiry must be “sensitive to the unique circumstances of the case and informed by common sense.” Redmond v. Redmond, 724 F.3d 729, 744. Acclimation of older children and the intentions and circumstances of caregiving parents are relevant considerations, but no single fact is dispositive across all cases. The treaty’s “negotiation and drafting history” corroborates that habitual residence depends on the specific circumstances of the particular case. Medellín v. Texas552 U.S. 491, 507. This interpretation also aligns with habitual-residence determinations made by other nations party to the Convention. Pp. 7–12.

(b) Monasky’s arguments in favor of an actual-agreement requirement are unpersuasive. While an infant’s “mere physical presence” is not a dispositive indicator of an infant’s habitual residence, a wide range of facts other than an actual agreement, including those indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence has the quality of being “habitual.” Nor is adjudicating a dispute over whether an agreement existed a more expeditious way of promoting returns of abducted children and deterring would-be abductors than according courts leeway to consider all the circumstances. Finally, imposing a categorical actual-agreement requirement is unlikely to be an appropriate solution to the serious problem of protecting children born into domestic violence, for it would leave many infants without a habitual residence, and therefore outside the Convention’s domain.” Pp. 12–14.

In short this decision tells us that a child’s habitual residence depends on a totality of circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents.

Decision making model

How to provide evidence of the habitual residence?

Decision making model

To proof what country is the habitual residence, you can think of the following subjects:

  • on what address is the child registered officially?
  • on what address is the child registered at a family doctor/ dentist etc.?
  • where does the child attend school/ daycare?
  • is the child receiving special education that makes the child extra attached to the school?
  • where does the child have most family living nearby?
  • where does the child have friends living nearby?
  • where does the child know his/her way around the neighborhood?
  • where is the child attached to amenities in the neighborhood (parks, museums, etc.)?

 

In what way evidence can or must be presented depends on national procedural law.

Generally speaking, when providing evidence one can think of:

 

  • documents concerning the address
  • sale, buy or rental agreements concerning a house and/or car
  • employment contracts
  • flight data
  • memberships
  • bank statements
  • what-app conversations
  • emails
  • screenshots from school parent portals, etc.
  • (written) statements from third parties
  • audio recordings and transcripts thereof
  • (family) photographs.

Find a lawyer or mediator

For a number of countries, we provide a list of lawyers and mediators who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.