CASE

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Case Name

Re S. (A Minor) (Custody: Habitual Residence) [1998] AC 750, [1997] 3 WLR 597, [1998] 1 FLR 122

INCADAT reference

HC/E/IE 3

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

House of Lords

Level

Superior Appellate Court

Judge(s)
Lords Goff, Slynn, Nolan, Nicholls and Hutton

States involved

Requesting State

UNITED KINGDOM - ENGLAND AND WALES

Requested State

IRELAND

Decision

Date

24 July 1997

Status

Final

Grounds

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3

Order

Appeal dismissed, granting of Article 15 declaration confirmed

HC article(s) Considered

3

HC article(s) Relied Upon

3

Other provisions

-

Authorities | Cases referred to
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 AII ER 961, [1990] 2 FLR 450; Re B.-M (Wardship: Jurisdiction) [1992] 1 FLR 979; Re H., Re S. (Minors) (Abduction: Custody Rights) [1991] 2 AC 476, [1991] 3 WLR 68, [1991] 3 AII ER 230; Re S. (Abduction: Hague and European Conventions) [1997] 1 FLR 959.

INCADAT comment

Aims & Scope of the Convention

Removal & Retention
Nature of Removal and Retention
Habitual Residence
Habitual Residence

Article 12 Return Mechanism

Rights of Custody
Sources of Custody Rights

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a boy, was 1 at the date of the alleged wrongful removal / retention. During this time he had moved between England and Ireland. The parents were not married and the father had no custody rights in respect of the boy. On 11 March 1996, the day after the death of the mother, the maternal grandmother and aunt took the boy to Ireland.

On 13 March 1996 the English High Court granted interim care and control of the child to the father and ordered that the child be returned to the jurisdiction. On 14 March 1996 the same court made the child a ward of court. On 4 October 1996, at the substantive hearing, the High Court ruled that the child was still habitually resident in England when the interim order was granted. This finding was upheld by the Court of Appeal on 18 December. Contrary to the view taken by the High Court, the Court of Appeal further held that there had been a breach of Article 3.

On 13 March 1996 the Dublin Circuit Court granted guardianship and care and control of the child to the maternal aunt. These proceedings were stayed on 26 March 1996, although the father was awarded access by consent on 27 June 1996.

The proceedings to determine whether there had been a wrongful removal or retention arose in England because the English Central Authority had initially refused to accept the father's application under the Hague Convention.

Ruling

Appeal dismissed - issue of Article 15 declaration confirmed; the House of Lords ruled that the order of 13 March 1996 had given the father custody rights and thereafter the retention of the child in Ireland was wrongful within the terms of Article 3.

Grounds

Habitual Residence - Art. 3

Where no individual enjoys rights of custody in respect of a child and that child is then removed from the jurisdiction, the child will not immediately lose its existing habitual residence.

Removal and Retention - Arts 3 and 12

Although the concepts of removal and retention are separate and mutually exclusive both can occur on the facts in relation to the same child at different times. It must however be necessary to point specifically to the event which constitutes the removal or the retention

Rights of Custody - Art. 3

At the time of the removal, the mother having just died, no one had custody rights in respect of the child. The subsequent attribution of custody rights to the father in the immediate aftermath of the removal was sufficient to render the continued retention of the child wrongful if he petitioned for a return order.

INCADAT comment

The decision of the Court of Appeal may be found at Re S. (Abduction: Hague and European Conventions) [1997] 1 FLR 959. The return of the child was subsequently ordered by the High Court in Ireland, see: A.S. v. E.H. & M.H. [1998] 2 ICLMD 6 [INCADAT Reference: HC/E/IE 286].

Nature of Removal and Retention

Preparation of INCADAT commentary in progress.

Habitual Residence

The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.

Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.

General Trends:

United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.

Child Centred Focus

The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:

Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].

See also:

Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].

Combined Child's Connection / Parental Intention Focus

The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.

The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].

See also:

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].

In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.

Parental Intention Focus

The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.

This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:

Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.

The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:

Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].

It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.

Other Jurisdictions

There are variations of approach in other jurisdictions:

Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).

8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].

Canada
In the Province of Quebec, a child centred focus is adopted:

In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.

Germany
A child centred, factual approach is also evident in German case law:

2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].

This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:

Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998  [INCADAT Reference: HC/E/DE 233].

The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.

Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:

Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];

Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].

However, reference has been made to a more child centred approach in other cases. See:

decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;

FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].

New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See

S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

Switzerland
A child centred, factual approach is evident in Swiss case law:

5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].

United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.

Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:

R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;

R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.

Sources of Custody Rights

Preparation of INCADAT case law analysis in progress.