The Continuing Refinement of Habitual Residence: R, Petitioner
DocumentCited authorities 15Cited inRelated
Vincent
Date
01 January 2016
DOI
10.3366/elr.2016.0325
Pages
82-86
Author
Published date
01 January 2016
The past two years have provided fertile ground for judicial consideration of habitual residence as a factor connecting a person to a specific legal jurisdiction. Since September 2013, the connecting factor has been considered twice by the Court of Justice of the European Union1
These judgments were followed by a plethora of decisions from the lower courts, particularly the family division of the High Court, in which the question of habitual residence has been considered in myriad factual circumstances. The principal focus of this analysis is the recent judgment of the Supreme Court in the Scottish case of R, Petitioner,3
but in order fully to understand the context in which this decision was made it is necessary first to consider the development of the law in these earlier judgments, particularly that of A v AA V A
Between September 2013 and January 2014, the Supreme Court handed down three judgments which, while considering very different factual circumstances, all dealt with the question of how the habitual residence of a child was to be determined.4
A more detailed consideration of all three cases can be found in D Williams, “The Supreme Court trilogy: a new habitual residence rises!” [2014] IFL 84 and R Schuz, “Habitual residence of the child revisited: a trilogy of cases in the UK Supreme Court” (2014) 26 CFLQ 342.
The most influential of these judgments is the first, A v A.5
A v A (Children: Habitual Residence)[2013] UKSC 60, [2014] AC 1. See also D Hill, “Habitual residence in the Supreme Court” (2014) 36 J of Social Welfare and Family Law 211.
While this case was ultimately disposed of on other grounds,6
In A v A the question as to whether the English courts had jurisdiction over the child at the centre of the dispute was determined with reference to nationality rather than habitual residence.
the judgment nevertheless provides a detailed consideration of the law pertaining to habitual residence. In particular, the Supreme Court took the opportunity to clarify that habitual residence was intended to be, and should be interpreted contemporarily as, a factual concept, free from judicial gloss and the type of technical legal rules which so bedevil the determination of domicile.7
At paras 36 and 54 per Baroness Hale. This approach was confirmed in the two subsequent cases of Re L and Re LC.
Such a factual interpretation was to be achieved by various means: by rejecting the approach which had developed following the earlier House of Lords decision in R v Barnet London Borough Council, ex p Nilish Shah,8
and by adopting the test propounded by the Court of Justice of the European Union (“CJEU”) that the habitual residence of a child...
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