While we all know that our "home is where the heart is" we might not know where our 'habitual residence' is. Habitual residence might sound like legal jargon but in child law cases, it is often necessary to consider where you and your child habitually reside. This can become very important if you are asking the courts to make a decision about you or your children. Before you can raise a court action relating to your children in Scotland you need to establish that your children are habitually resident or domiciled in the jurisdiction of the court. You can read more about domicile here.
Habitual residence is particularly important in cases involving international child abduction. This is where a parent relocates with their child to a new country without the consent of their child's other parent either to leave the country or to permanently stay in a new country. The parent who has been "left behind" may be able to ask the court of the "new" country to order the return of the children. If the child is still "habitually resident" in the country that they left, then the court may order that the children are returned to that country.
What is habitual residence?
Habitual residence is a matter of fact. There may be a number of factors involved in determining habitual residence. An individual's intentions or future plans are not likely to be determinative.
As a starting point, a person's habitual residence is generally the country in which they live and intend to remain. There can be some exceptions to this. Exceptions can include people who are members of the armed forces or those who work abroad for periods of the year. In these circumstances, the country in which you spend the majority of your time may not be your habitual residence. You can only have one habitual residence at any one time.
How do I know what my child's habitual residence is?
The courts have been asked to decide on where children are habitually resident on a number of occasions. The case law indicates that a child's habitual residence is the place where they are "integrated in a social and family environment". In order to assess in what country the children are integrated, some of the factors the court will consider are:
- In which country the child goes to school;
- What language the child speaks;
- Where the child is registered with doctors, dentists or other specialists;
- Where the child's family are based and what, if any, relationships the children have with their family;
- Where the child's friends live.
Can habitual residence change?
As habitual residence is treated as a matter of fact, an individual's habitual residence can change if their living situation changes. There must be an element of stability to the person's residence in a country before it can be considered their habitual residence. However, it is the stability of residence, rather than its degree of permanence that is important. There is then no set time frame before a child might acquire a new habitual residence and so it can be acquired in a short space of time if supported by the factors outlined above. A work trip or a short stay abroad is unlikely to be enough to change a person's habitual residence to that country.
It is possible for a child's habitual residence to change without the consent or even knowledge of one or both of their parents. In the context of international child abduction, the parent who has been left behind will usually have to show that the child has not yet acquired habitual residence in their new country if they are asking the Scottish court to order the child's immediate return. If a child has settled into their new environment then there may be enough evidence to show that their habitual residence has changed to the new country.
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Senior Solicitor
