Where do you consider yourself to be habitually resident? Australia? India? Iceland? What determines habitual residence, is it where you were born? Where you currently live? Where you pay your taxes? Given our increasingly globalised lifestyles and ‘suitcase culture’, is it even possible to geographically pin-point ‘where you live’. Indeed, to stretch this thought experiment is it possible for me to consider myself habitually resident in Barbados even though I have never visited the island? Sure it’s a social place, a social country, an outdoor culture, and a place where people greet you with a smile but the fact I want to settle there, is that enough? The issue of habitual residence was considered in the recent and desperately sad child abduction case ZA & PA v NA.
The father and mother were married in 1999 in Pakistan and relocated soon after to the UK. They separated in 2006 after what was an abusive and violent relationship. Their three eldest children had been born in England. In 2009, the mother took the three eldest children to Pakistan for a holiday, intending to return to England. However, she was coerced into staying by the father and the children were entered into schools in Pakistan. She was effectively kept under house arrest. The youngest child (H) was born in Pakistan in 2010. Following H’s birth, the mother returned to England without him but obtained an order for the immediate return of all four children on the basis that they were all habitually resident in England. The judge held that H had acquired habitual residence in England at birth.
The father appealed this order in respect of all four children specifically making the point that as H had never been to England it was nonsensical to say that he was habitually resident here.
The Court of Appeal agreed with the lower court that the three eldest children were habitually resident in England. Their habitual residence flowed from that of the mother and she only ceased residing in England under duress and so remained habitually resident in England at all material times.
However, when turning to the position of H, the Court of Appeal, with, one surmises, some regret, found that without a child ever having been physically present in this country he could not be said to be habitually resident here.
In a dissenting speech, LJ Thorpe strongly argued that H should be deemed to be habitually resident in England because in some very narrow situations a new-born could acquire the habitual residence of its parent without ever having been in a country.
Distilling the lessons:
The Court of Appeal found that habitual residence is a matter of fact and while the result in this case may have been deeply unsatisfactory to the conscience of many the ruling does work to simplify a previously obscure legal concept into a straightforward factual analysis.