Home is where the……Court says it is!
Home is where the……Court says it is!06 March 2019 Written by James & George Collie

Dont sing when your winning

The Supreme Court, the highest Civil Court in the United Kingdom, has recently made a very important decision on the interpretation of the Hague Convention in regard to “habitual residence” in matrimonial cases. This has significant ramifications not only for UK citizens who live abroad on an ex-patriate basis, but also foreign nationals who live in the United Kingdom on a similar basis.


The important point in this case is the Court’s interpretation of the “habitual residence” of the children who are the subject of the action as, in terms of the Hague Convention, in the event of a dispute between parents of children, the children should be returned to the place where they were habitually resident, if they are living in another place, or should remain in the place where they are living if that is their habitual residence.


The Hague Convention’s aim is “to secure the prompt return of the children wrongfully removed to or retained in any contracting state”.  The Courts are given no discretion on this matter and where a child has been wrongfully removed or retained from his or her habitual residence and proceedings are commenced within one year, the relevant state shall order the return of the child forthwith.  Many will have read or heard of “International abduction cases”, and the purpose of this Convention is to deal with such cases.


In the case of AR v. RN, the decision turned on whether the Court should order the return to France of two little girls who had been living with their mother in Scotland since July 2013, following the end of the parent’s relationship.  The children were born in France and their father is a French citizen who has lived in France all of his life and has a small business in France.  The mother is a British/Canadian citizen who was born in Canada of a Scottish mother.  She works from home for a Canadian employer and she and the father have never been married.  Until July 2013, the family lived in France, visiting Scotland from time to time.  In July 2013, the mother and her children came to live in Scotland, with the agreement of the father.  It was agreed that they would do so during the mother’s twelve month maternity leave with the intention that, at the end of that period, they would return to France.  It was a matter of agreement that the mother and children would live in Scotland for a period of about a year from July 2013.  The elder child attended the local Nursery School in Scotland and the father visited the family for several days each month.  The mother and children joined the father for a holiday in France during this period.


The couple’s relationship ended in November 2013, at which time the mother sought a Residence Order in respect of the children and Interdict against the father removing them from Scotland.  The father sought an Order for the return of the children to France maintaining that the mother had “wrongfully” retained the children, within the meaning of the Hague Convention.  The father argued that the children were habitually resident in France immediately before 20 November 2013.


When the case first called before the Outer House of the Court of Session, the Judge took the view that the children were still habitually resident in France, based on the fact that the move to Scotland had not been intended by both parents to be permanent.


The Inner House i.e. the Appeal Court in Scotland, reversed that judge’s decision on the basis that shared parental intention to move permanently to Scotland was not an essential element in any alteration of the children’s habitual residence and concluded that the children were habitually resident in Scotland at the material time. This decision was appealed to the Supreme Court which dismissed the Appeal before it, stating that stability of residence, rather than its degree of permanence, was important.  Lord Reid stated “There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.  Habitual residence is therefore deemed to be a question of fact which requires an evaluation of all relevant circumstances.  The purposes and intentions of the parents are merely two of the relevant factors which must be taken into account.  It is necessary to assess the degree of integration of the child into a social and family environment in the country in question.”  The Court concluded that the children were habitually resident in Scotland within the meaning of the Convention.


This decision potentially raises many interesting questions amongst the ex-patriate community in Scotland and for UK citizens who live in a state which contracts to the Hague Convention, in the event of the breakdown of their relationship, when the question of the residence of the children is in dispute.


For further information on this, please feel free to contact any of the members of our Family Law Team, Duncan Love (01224) 581581, This email address is being protected from spambots. You need JavaScript enabled to view it., Susan Waters (01224) 581581, This email address is being protected from spambots. You need JavaScript enabled to view it., or Jenni Sutherland (01224) 581581, This email address is being protected from spambots. You need JavaScript enabled to view it..

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