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Presence v Residence- 16/01/2012
This article was first published in New Law Journal, 13 January 2012.
Are we edging towards a single, universally applicable, “test” of habitual residence? Simon Blain reports.
IN BRIEF
- The appropriate test for determining the habitual residence of a child for the purposes of Arts 8 and 10 of Brussels II Revised.
- The “European” definition of habitual residence is likely eventually to carry greater weight in non-European cases.
“Where does my client live?” That is one of those apparently simple questions that family lawyers face on a regular basis, which turn out to have far from simple answers.
Three recent cases brings some welcome clarity to this fascinating area of the law, although we are sadly still some way from having a single, universally applicable, “test” of habitual residence. The test remains different, depending on whether or not one is dealing with a European case to which Regulation (EC) No 2201/2003 (Brussels II Revised) applies.
Relevant factors
On a referral from the Court of Appeal the ECJ was asked to clarify the appropriate test for determining the habitual residence of a child for the purposes of Article 8 and Article 10 of Brussels II Revised (Mercredi v. Chaffe [2010] EU ECJ C – 497/10)
The mother was born on the French Indian Ocean island of Réunion and is French. The father is British. The parents lived together in England as an unmarried couple. When their daughter was two months old, the mother moved with her to Réunion. The father issued proceedings in England for the child’s return and the mother issued proceedings in France.
The ECJ did not determine the child’s habitual residence, but rather set out the factors which the national court should consider. The ECJ emphasised that the person’s presence must not be “in any way temporary or intermittent” and that, “it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character”.
Transient v settled
H-K Children [2011] EWCA Civ 1100 is a decision of the Court of Appeal, in which the lead judgment was given by Ward L J.
The father is Australian and the mother is British. They met in Sydney where they had two children but did not marry. The mother was unsettled, and it was agreed that the family would move to England for 12 months. The majority of their possessions were left behind, and the children’s school places were deferred. The relationship broke down, and the father returned to Australia as planned. The mother and children remained in England and she accepted that she had deceived the father into believing that she would follow him back to Australia.
The father sought the children’s return to Australia. The question for the Court was whether the children had acquired habitual residence in England. The Judge at first instance found that they had not and emphasised the temporary nature of the move to England. The mother appealed.
Ward L J found that the move to England had been temporary but that did not mean that they had not acquired habitual residence. He approved the judgment of Lord Scarman in Reg .v Barnet LBC ExP.Shah [1983] 2 AC 309 in which he said that what was important when determining habitual residence was that the person was moving to the country “for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration”.
Ward L J noted that the “European” definition of habitual residence was likely eventually to carry greater weight even in non-European cases. However, he expressed concern at the decision in Mercredi, and in particular the ECJ’s emphasis on the “permanent” nature of a move, if it is to be sufficient to establish habitual residence.
Applying the test in Shah, Ward L J found that the family’s stay in England was of a sufficient duration to be of a settled matter than transient purpose. The mother succeeded on appeal.
Multinational families
This decision of Jackson J in V v V [2011] EWHC1190 (FAM) involved a truly international family. The wife sought to establish that she had jurisdiction to petition for divorce in England. Under indent 5 of Article 3 (1) (a) of Brussels II Revised, which states: “in matters relating to divorce….. jurisdiction shall lie with the courts of the Member State…. in whose territory…. the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made”.
Jackson J found that the international nature of the family was relevant to an assessment of the wife’s habitual residence. He said “just as there are multinational companies, so this is a multinational family”. The fact that the wife had spent considerable periods outside England during the twelve months prior to her petition, was therefore less relevant than it would have been in the context of a different family.
It is understood that the husband has appealed, and the Judgment of the Court of Appeal is awaited. However, Thorpe L J has been quoted in the media as saying that “a family such as this in its travels about the world has to have some secure base…. The reality is that the petitioner’s residence base was, throughout the material time, in London. The requirement of European law does not stipulate for her presence, but only for her residence here”.
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