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 one lives’. 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?
Habitual residence was considered in the recent child abduction case ZA & PA v NA.
The father and mother married in Pakistan in 1999 and moved to the UK soon after. They separated in 2006 after what was an abusive and violent relationship. The three eldest children were born in England.
In 2009, the mother took the three eldest children to Pakistan for a holiday, intending to return to England. She was subsequently pressured 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 disputed this order and made the point that H had never been to England and therefore it was nonsensical to say that he was habitually resident there.
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.
When considering the position of the youngest child, the Court of Appeal, with, one surmises, some regret, found that without a child ever having been physically present in this county 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 the country.
Distilling the lessons:
The Court of Appeal found that habitual residence is a matter of fact and while the result may have been deeply unsatisfactory to the conscience of many the ruling does work to simply a previously obscure legal concept into a mere factual analysis.