Habitual Residence in the EU?

Habitual residence faces considerable uncertainty in the EU.  Regulation 2201/2003—also known as Brussels IIbis (“BIIbis”)—establishes jurisdiction in parental responsibility disputes among EU Member States. (Here is an overview of EC Regulation 2201/2003).   Habitual residence is the key factor in determining jurisdiction.  This post analyzes a recent ECJ case and then contrasts its holdings with two subsequent UK cases.

a.  Habitual Residence in the ECJ

The ECJ has endorsed a fact-based habitual residence test for cases under BIIbis in one decision so far.  The case, A (C-523/07), involved a parental responsibility dispute between a mother and a public child welfare agency.  Three children who lived with their mother and stepfather in Sweden since 2001 traveled as a family to Finland in the summer of 2005 to spend their summer holiday.  While still in Finland in October 2005, they applied for public housing.

In November, a local welfare agency removed the children to a childcare unit.  The mother unsuccessfully challenged this action in a Finnish court.  On appeal, a Finnish appellate court submitted four questions to the ECJ.
In the central question, the Finnish asked how to determine the children’s habitual residence, considering their peripatetic lifestyle in Finland.  The Advocate General’s (“AG”) opinion framed the issue with the need for a precise definition of habitual residence in light of the spirit and purpose of BIIbis and the best interests of the child.  Distinguishing between presence and habitual residence, the AG turned to other private international law treaties because of their importance in interpreting and providing uniform interpretation on this issue.

Following the ECJ’s decision in Rinau,  the AG looked to the Hague Abduction Convention’ guiding principles.  Thus, the AG considered habitual residence “by reference to all the relevant circumstances…distinguished from the legalistic concept of domicile.”

In embracing that definition, the AG parted from the Commission’s suggested definition.   The Commission, relying on the Borras Report, specified factors including intention, relevant facts, and actual residence.  Ultimately, the AG rejected intent, standing alone, as a determinant of habitual residence.

The AG posited that intent may have been important in determining habitual residence for simple divorce cases, which BIIR addressed.  However, intent is less important in BIIbis parental responsibility cases—when determining a child’s habitual residence, children often lack intent and parents’ intentions conflict.  Thus, the AG rejected the habitual residence definition in divorce law and, for that matter, social law because of those laws’ differing aims.

In applying a fact-based test based test, the AG paid particular attention to the “duration and regularity of residence” and the “child’s familial and social integration.”

First dealing with duration and regularity of residence, the AG rejected any strict time limit.  In the case, the durational relevance related to the children’s ages and their familial and social circumstances.  While habitual residence tolerates interruptions, children lose a previous habitual residence when “a return to the original place of residence is not foreseeable.”

Further, the AG noted that habitual residence can shift quickly, as evidenced by the three-month period of continuing jurisdiction in BIIbis Article 8.  Parents’ common intentions can play a role in assessing the regularity of the residence—but only when manifested towards the child’s integration—e.g., by enrolling the child in school, leasing or purchasing property, or changing an address.  This was how the AG defined the duration and regularity of the residence.

Second, the AG examined factors surrounding a child’s familial and social integration.  These factors can vary with the child’s age, but contact with relatives, “school, friends, leisure activities and, above all, command of language are important.”  Considering these factors, courts must determine whether a habitual residence exists.

The ECJ decision largely adopted the AG’s opinion regarding the need for uniform and autonomous interpretations, the unique definition of habitual residence in parental responsibility cases, and the factors to consider in determining habitual residence.  Instead of focusing on intent or the “centre of interests,” the court held that:

the concept of ‘habitual residence’ under Article 8(1) of the Regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.

Thus, the ECJ named roughly eight factors to consider when determining habitual residence: (1) duration, (2) regularity, (3) conditions, (4) reasons for the child’s presence, (5) school attendance, (6) linguistic knowledge, (7) family relationships, and (8) social relationships.  With those factors in mind, the ECJ returned the case to the national court.

Unfortunately, the ECJ did not exactly express the habitual residence determination by enumerating those clear factors.  Instead, a looser focus on “all the circumstances specific to each individual case” dilutes the possibility for uniform interpretation among Member States’ courts.  Soon, two examples in UK appellate courts would show habitual residence’s slipperiness.

b.    Habitual residence acquired after less than two interrupted months in England

In S(A Child), a court acknowledged—but did not effectively apply—the ECJ’s habitual residence determining factors.   In that case, a Belgian father argued that his child was not habitually resident in England.  He and the Australian mother had a daughter in December 2005 in Australia, who spent most of her life in a small Belgian village with her parents, near her grandmother.  In February 2007, the father signed a three-year lease in that Belgian village.

In March 2007, the father took a three-month job in Belfast.  A month later, the mother and child followed, staying in an apartment that his employer provided there.  In May 2007, the mother and child returned to Belgium.  The father took a two-year job in London, where, for six weeks, he stayed with a friend during the week and travelled to Belgium on the weekends.

Then, the father’s friend in England secured a projected three to nine-month job in Canada.  So, the friend offered his England home for the family’s use.  In August 2007, the family moved in but left most of their possessions in Belgium.  Then, the daughter spent two weeks with her grandmother in Belgium in September.  Unfortunately, the friend’s job in Canada fell through, and the family had to give up their English digs by the end of September.

At this time, the marriage fell apart.  The parents had differing plans for their daughter: the mother pictured her life in Australia; the father took the child to Belgium on September 28.

On appeal, the appellate judge repeatedly emphasized the indeterminate time—three to nine months—that the family planned to spend at the borrowed home in England, despite the primary home in Belgium.  The judge opined that the “constancy of that primary home [did] not prevent the acquisition of habitual residence in the work country if the other elements within the defined principles of acquisition [were] satisfied.”  The court reviewed “the facts as the [trial] judge found them,” and “whether it was open to her to conclude that those facts were sufficient to satisfy the tests set out in the authorities.”  The appellate judge then upheld the decision that, in six interrupted weeks, the young child had acquired habitual residence in England.

In reaching that conclusion, the appellate judge accepted the father’s “very substantial” legal connection with England because of his employment, tax contributions, and work permits.  The appellate judge accepted the lower court’s emphasis on the parties’ intention to remain in England for three to nine months.

The appellate court’s reasoning was troubling in light of C-523/07, because those connections and intent had little to do with the child’s actual integration in England.  The appellate court relied heavily on the trial court’s balancing, but the trial decision came down before the ECJ clarified the autonomous habitual residence test.  Considering the eight factors above, the child’s habitual residence had not likely shifted to England.

The duration was quite short—certainly less than two months.  The regularity was also lacking as the child had spent two weeks with her grandmother in Belgium during her time in England. The conditions of the residence were undeniably temporary.  The reason for the child’s presence was simply to share a rent-free home with both parents.

Further, no indication of school attendance or linguistic knowledge arose in the courts’ opinions—factors explicitly required when following the ECJ analysis.  Finally, the child’s family and social relationships were seemingly limited in England.  Her father and mother were living in England temporarily and her grandmother—who she spent a quarter of her “residence” in England with—was in Belgium.  Therefore, this case’s reasoning strays from a narrow construction of the ECJ test.
b.    Habitual residence not acquired after one year in Wales

In another 2009 case, P-J (Children), a Spanish father sought a return when his Welsh wife removed their children from Spain to Wales.   Initially the mother had taken the children from Spain to Wales to live with their grandparents and go to school in Wales for a year, with the father’s consent.  After that year, the mother and children returned to Spain and enrolled in school.  About two months later, the mother left with the children without the father’s consent.

At issue in the appellate court was the children’s habitual residence.  The mother argued the first move established Wales as the children’s habitual residence.  Lord Justice Ward agreed that “acquiring habitual [residence] … permits a stay of comparatively short time [whereas] domicile … requires an intention to remain [] indefinitely.”

However, Lord Justice Ward recalled that “[h]abitual residence of young children of married parents all living together as a family is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.”  Without setting a fixed period, habitual residence “depends ‘more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind.’”

Applying this definition, the court decided that the children’s habitual residence was Spain.  Lord Justice Ward concluded that their:

ordered way of life was Spanish. Their education had been undertaken there and with the mother’s collaboration it was arranged that it should continue in Spain upon their return. Their schooling in Wales was for a temporary period and for the limited purpose of improving their English. Their home was in Spain, not with their grandparents in Wales. The visit to Wales was a convenient respite to meet the dual objectives of increasing their language skills and refurbishing the Spanish home. The mother actively participated in the planning of the work even whilst she was in Wales. The essential dental work was carried out in Spain…. [The f]amily life was centred on Spain, which is simply another way of saying Spain was the regular order of their life.

The court thus concluded—based on UK case law—that the habitual residence was Spain.

However, that conclusion does not comport to the ECJ factors in C-523/07.  By ignoring whether the children re-established their Spanish habitual residence, the appellate court too quickly dismissed the potential habitual residence in Wales.

After all, their presence in Wales was for a substantial duration and regularity—an entire year.  They stayed at their grandparents’ home with the father’s consent.  Their purpose was to acquire English language skills and attend school—two explicit factors that contribute to integration. The children developed relationships with their grandparents and social relationships with their classmates.  Thus, under a narrow reading of C-523/07, the children acquired habitual residence in Wales.

These two UK cases demonstrate the problems that arise from clinging to the fact-based habitual residence test.  Even with an ECJ decision on this matter, parents still face great uncertainty in parental responsibility cases before EU Member States’ national courts.