I would propose a temporal standard for habitual residence. In fact, the largely common law US has a temporal standard for home state jurisdiction in interstate cases. Under the UCCJEA, six months residence establishes home state jurisdiction.

This temporal standard would work in the intergovernmental EU setting and is already present in EU Member State parental responsibility case law. The Austrian Supreme Court has adopted a six-month standard for habitual residence under BIIbis. The Danish courts have also focused on time in-country.

Moreover, BIIbis already includes temporal standards. For example, after one year in a country after a wrongful removal, jurisdiction can shift to the new habitual residence. Also, continuing jurisdiction for access rights only lasts for three months.

The temporal standard is preferable for several reasons. First, this promotes legal certainty, which will reduce litigation costs and protect the interest of children en masse. Second, this standard affords increased autonomy and uniformity among EU national courts. Finally, this standard would make international jurisdiction easier to approximate on the private international level–and the EU arguably now has external competence on this brand of jurisdiction.

The wrinkle in the temporal standard is temporary absence.

I agree that the Welsh case was right–because the absence was indeed temporary. However, the appellate court did not rely on the language in C-523/07, which placed the onus on the mother to show that the stay was in no way temporary. This she could not do. Thus, the appellate court reached the right conclusion, but it potentially creates confusion for future cases.

As a solution, I propose a temporal standard for temporary absence. This would improve on the UCCJEA standard, which has resulted in US cases with questionable determinations that extended stays were temporary. I argue that even when parents intend temporary stays, the child will nonetheless integrate into the environment.

In sum, I prefer the habitual residence tests (and they vary between countries and even between US Federal Circuits–indicating no uniformity!) that eliminate parental intent. Intention smacks too much of domicile and injects too much subjectivity in the courts–courts should thus remove it from the analysis. The best way I can think of to do that is to focus on time spent in the country.

Here, I think the court got the Welsh case right. The Belgian one is closer to the borderline, and I am inclined to agree with the author’s suggestion (not outright statement) that it was wrong.

The notion of habitual residence as a connecting factor was strongly resisted by many civil countries when it started to become important at The Hague, say in the 1980s. The civilian tradition placed much more weight on nationality and domicile. As a common lawyer, my sympathies have been with the flexible and realistic habitual residence test (as I am pleased to characterize it), but maybe the common law tradition lives with more uncertainty in principle than the civil law.