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,…

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Habitual Residence and the 1996 Hague Child Protection Convention

The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Convention”) entered into force on 1 January 2002.  Why the long name?  The drafters wanted to clarify the four aims of the Convention and thereby avoid confusion that would result from a shorter name.

With 19 Contracting Parties and 28 signatories so far, and more on the way, this multilateral treaty will likely play a major role in future cross-border parental responsibility cases.  This post examines the Convention’s purpose and functioning and, in particular, the habitual residence’s role in determining jurisdiction.

The Explanatory Report by Paul Lagarde provides detailed information about the Convention.  The Hague Conference on Private International Law’s 17^th Session set up a Special Commission to draft a treaty for the protection of children to update its 1961 predecessor and conform to the 1993 Convention on the Rights of the Child.  Completed during the 18^th Session in 1996, the Convention addresses a broader scope of parental responsibility issues than the 1980 Hague Abduction Convention.

Parental responsibility determinations begin with jurisdiction.  The Convention broadly defines parental responsibility as “parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child” (see Art. 1, ¶ 2).

The key jurisdictional factor in these parental responsibility matters…

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