The Continuing Refinement of Habitual Residence: R, Petitioner

Date01 January 2016
Publication Date01 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

Case C-436/13 E v B [2015] Fam 162 and Case C-376/14PPU C v M [2015] Fam 116.

and four times by the Supreme Court.2

A v A (Children: Habitual Residence) [2013] UKSC 60, [2014] AC 1; Re L (A Child)(Custody: Habitual Residence) [2013] UKSC 75, [2014] AC 1017; Re LC (Children) [2014] UKSC 1, [2014] AC 1038; and R, Petitioner [2015] UKSC 35, 2015 SLT 392. In addition, the Supreme Court recently handed down a judgment concerned with the meaning of ordinary residence: R (on the application of Cornwall Council) v Secretary of State for Health [2015] UKSC 46.

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

R, Petitioner [2015] UKSC 35, 2015 SLT 392.

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 A <italic>A V A</italic>

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

[1983] 2 AC 309.

in which elements of the concept of ordinary residence were transposed onto the understanding of habitual residence;9

At para 54 per Baroness Hale.

by clarifying the precise effect of Lord Brandon of Oakbrook's seminal judgment in Re J (A Minor) (Abduction: Custody Rights);10

[1990] 2 AC 562.

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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