Supreme Court rules on temporary or defined moves and habitual residence

Supreme Court rules on temporary or defined moves and habitual residence

Family analysis: Michael Gration, barrister, of 4PB, examines the Supreme Court’s decision in Re C (children: anticipatory retention) [2018] UKSC 8 that the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the 1980 Hague Convention) cannot be invoked if, by the time of the alleged wrongful removal or retention, the child has become habitually resident in the requested state, and its decision that there can be wrongful retention before the expiry of the period of absence agreed by the parents.

What are the practical implications of the decision?

Following this judgment, it is now clearly established that:

  • a child’s habitual residence can change following an international move, notwithstanding that the left-behind parent may not agree to such a change
  • a child’s habitual residence can change following an international move that is only intended to be temporary or for a defined purpose, and
  • the question of whether or not a child’s habitual residence has changed is a question of fact

Accordingly, parents, and lawyers advising parents, must be aware that if they agree to a child moving abroad, even if only for a defined period or for a particular purpose (for example while a mother is on maternity leave, or while one of the parents works on a fixed-term contract—though there are innumerable other examples) the child’s habitual residence may change.

In accordance with the decision in this case (though it only follows what has been the clearly established practice for the life of the 1980 Hague Convention), once a child’s habitual residence has changed, the left-behind parent will no longer be able to pursue the summary return of that child pursuant to the 1980 Hague Convention. As such, it will be of fundamental importance to consider:

  • how the position of a parent who is considering agreeing to a temporary move can be safeguarded, and
  • what safeguarding conditions might be put in place

The 1980 Hague Convention is now supported by two other international instruments that are of fundamental importance—Council Regulation (EC) 2201/2003 (Brussels

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