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Habitual residence in child abduction case

11th September 2018

Where is a child habitually resident?

With advances in travel and the wealth of opportunities abroad we are increasingly seeing families moving from country to country. However, what happens if the relationship breaks down? Which country decides on where any children should live?

NN v HN [2018] CSOH 65

Background

In this recent case which called before Lady Wise in the Court of Session, the parties involved were a German husband and a Scottish wife with two young children. The children lived in Scotland with their parents from birth until the older child was 6 and the younger child was 2 years of age. They then moved to Germany. They had been in Germany for about seven months when the wife decided, whilst on a weekend trip to Scotland, that the marriage was finished and she retained the children in Scotland.

Parties’ respective arguments

The husband raised proceedings under the Child Abduction and Custody Act 1985, the instrument which incorporates the Hague Convention on International Child Abduction into our domestic law.  He sought the children’s return to Germany on the basis they had been wrongfully retained in Scotland. The key tenet of the Hague Convention is that it is the court in the country where a child is habitually resident that should decide where a child should live if the parents or guardians disagree in that regard.  The wife, in this case, argued that either the children had never lost their Scottish habitual residence or that they had but they had also lost their habitual residence in Germany as they had actually been in Austria for a few weeks prior to the retention in Scotland.  The parties had ultimately planned to move to Austria once their son was proficient in German (he initially attended an International School in Germany where teaching was in English and German) but they had accelerated the move when the wife had an extra marital affair with a gentleman in the town in which they lived in Germany and they wanted to give their marriage the best chance of survival. Neither party argued that habitual residence had moved to Austria.

Consideration of existing case law

So how did Lady Wise decide where the children were habitually resident? She looked at the landmark Supreme Court case of A v A and Another (Children) [2013] AC 1. In this case, Baroness Hale departed from the previous case law which had focused on the intentions of a child’s parents and preferred the test adopted by the European Court, namely that the country of habitual residence was “The place which reflects some degree of integration by the child in a social and family environment”. Clearly, parental intention will still be a factor in considering this to some extent, but will not be determinative.

Important Factors

Lady Wise was able to glean some important factors to consider from this case and the Scottish case of re R (Children) [2016] AC 76 which was also heard by the Supreme Court, namely:-

  • The deeper the child’s integration in the old state, probably the less fast his achievement of requisite degree of integration in the new state will be,
  • The greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day to day life in the new state, probably the faster the achievement of that requisite degree will take place,
  • If all the central members of the child’s life in the old state have moved with him, probably the faster the achievement of requisite integration will occur, and
  • Stability of residence is what is important not permanence

Findings

When Lady Wise applied this to NN v HN she found that the children had gained habitual residence in Germany which was not lost when they moved for a short time to Austria. The following factors were relevant to her decision :-

  • The parties intended to permanently relocate from Scotland
  • It was a pre-planned move and their businesses were sold
  • They had made their home in Germany and brought their personal property there from Scotland
  • The father was working in Germany full time
  • The mother attended German classes
  • The children had places for the year at school and nursery in Germany and despite an unsurprising initial period of being unsettled immediately post the move, they were happy and doing well
  • The stay in Germany was open ended
  • The children were young and therefore their whole focus was their parents, the home they shared with them and their immediate surroundings
  • The children were enrolled in school in Austria but did not actually attend
  • The parties resided only in holiday accommodation in Austria
  • The parties had not departed Germany in the way they had Scotland – their departure was “incomplete” and they were still registered as living in Germany and still had their home and furniture there
  • The move to Austria was on a trial basis
  • The children were in Austria for no longer than a holiday period
  • The children had no meaningful integration in Austria as their mother retained them in Scotland less than three weeks after their arrival there
  • The children had no family home in Austria or Scotland

Decision

Accordingly Lady Wise ordered the children’s immediate return to Germany.  This case highlights the need for parties who are thinking of moving abroad with their children to do so in the full knowledge of the potential consequences in the event of relationship breakdown. So often I have come across clients who think that if the children were born in Scotland, as in this case, then there will be no problem in moving back if things go wrong. Expert legal advice in advance of any move is accordingly absolutely essential.

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