HC/E/US 582
UNITED STATES - STATE JURISDICTION
Superior Court of California, Placer County
First Instance
ITALY
UNITED STATES OF AMERICA
21 April 2004
Upheld on appeal
Habitual Residence - Art. 3
Application dismissed
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For the Convention to apply the father first had to show that the child was habitually resident in Italy. The Court reviewed the evidence which showed the child moving regularly between Europe and the USA, with frequent residence in Italy, California and Belgium. The Court noted that there was never any shared or mutual intent between the parents as to the child’s residence. The evidence showed that all decisions relating to the child were taken by the mother and that the father acquiesced to the mother’s plans until September 2003. The father sought to argue that the activities of all the parties were ‘Italy centred’. The trial judge held that even if he were to accept that there was a substantial time spent in Italy this presence had to be accompanied by an element of intent which amounted to a settled purpose. He ruled that there was no such intent, there being no discernable purpose on the part of the mother to remain in any one place other than for purposes of her work. The judge ruled that the child was not habitually resident in Italy. Without having to decide the point the judge suggested that at the date of the removal the child was not habitually resident anywhere.
This decision was upheld on appeal, see: Ferraris v. Alexander, 125 Cal. App. 4th 1417, (2005) [INCADAT Reference: HC/E/US 797].
In early Convention case law there was a clear reluctance on the part of appellate courts to find that a child did not have a habitual residence. This was because of the concern that such a conclusion would render the instrument inoperable, see:
United Kingdom - England & Wales
Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548 [INCADAT cite: HC/E/UKe 40];
Australia
Cooper v. Casey (1995) FLC 92-575 [INCADAT cite: HC/E/AU 104].
However, in more recent years there has been a recognition that situations do exist where it is not possible to regard a child as being habitually resident anywhere:
Australia
D.W. & Director-General, Department of Child Safety [2006] FamCA 93, [INCADAT cite: HC/E/AU 870].
In this case the majority accepted that their decision could be said to deny the child of the benefit of the Convention. However, the majority argued that the interests of children generally could be adversely affected if courts were too willing to find that a parent who had attempted a reconciliation in a foreign country, was to be found, together with the child, to have become "habitually resident" in that foreign country.
United Kingdom - England & Wales
W. and B. v. H. (Child Abduction: Surrogacy) [2002] 1 FLR 1008 [INCADAT cite: HC/E/UKe 470];
United Kingdom - Scotland
Robertson v. Robertson 1998 SLT 468 [INCADAT cite: HC/E/UKs 194];
D. v. D. 2002 SC 33 [INCADAT cite: HC/E/UKs 351];
New Zealand
S.K. v. K.P. [2005] 3 NZLR 590, [INCADAT cite: HC/E/NZ 816];
United States of America
Delvoye v. Lee, 329 F.3d 330 (3rd Cir. 2003) [INCADAT cite: HC/E/USf 529];
Ferraris v. Alexander, 125 Cal. App. 4th 1417 (2005) [INCADAT cite: HC/E/US 797].
Academic commentators have long held that if the factual nature of the connecting factor is to be respected then situations may arise where an individual is habitually resident in more than one place at a particular time, see in particular:
Clive E. M. ‘The Concept of Habitual Residence' Juridical Review (1997), p. 137.
However, the Court of Appeal in England has accepted in the context of divorce jurisdiction that it is possible for an adult to be habitually resident in two places simultaneously, see:
Ikimi v. Ikimi [2001] EWCA Civ 873, [2002] Fam 72.
Courts in Convention proceedings have though held to the view that a child can only have one habitual residence, see for example:
Canada
SS-C c GC, Cour supérieure (Montréal), 15 août 2003, n° 500-04-033270-035, [INCADAT cite: HC/E/CA 916];
Wilson v. Huntley (2005) A.C.W.S.J. 7084; 138 A.C.W.S. (3d) 1107 [INCADAT cite: HC/E/CA 800];
United Kingdom - England & Wales
Re V. (Abduction: Habitual Residence) [1995] 2 FLR 992, [INCADAT cite: HC/E/UKe 45].
In this case where the children's lives alternated between Greece and England the court held that their habitual residence also alternated. The court ruled out their having concurrent habitual residences in both Greece and England.
United Kingdom - Northern Ireland
Re C.L. (A Minor); J.S. v. C.L., transcript, 25 August 1998, High Court of Northern Ireland, [INCADAT cite: HC/E/UKn 390];
United States of America
Friedrich v. Friedrich, 983 F.2d 1396, (6th Cir. 1993), [INCADAT cite: HC/E/USf 142].