Habitual Residence of Children Under the Hague Child Abduction Convention ? Theory and Practice

Abstract

The operation of the Hague Convention on Civil Aspects of Child Abduction (hereinafter referred to as the Abduction Convention) has highlighted the problems inherent in determining habitual residence in general and a child's habitual residence in particular. Whilst in many cases it is quite clear in which country the child habitually resided at the date of the abduction, in others it is possible that the child is habitually resident in one of two countries. The fate of the application under the Convention will invariably depend on the determination of habitual residence

Neither the Convention nor the Commentary give any guidance as to the relationship between the child's habitual residence and that of his parents. Caselaw in Abduction Convention cases in different jurisdictions reveals a number of different approaches to this problem.

In this article, three different models are identified for describing the relationship between the habitual residence of the child and that of his parents: the dependency model, the parental rights model and the child-centred/independent model. The theoretical basis for each model is considered and the practical implications thereof examined in depth in the light of caselaw in England, the US and other jurisdictions.

The conclusion arising from this analysis is that the optimal model is the child-centred/independent model both because it best reflects the modern perception of the child as an autonomous individual and right-holder and because it avoids practical difficulties which arise under the other models. However, examination of the cases where the courts have purported to apply the child centred/independent model reveals that heavy emphasis has still been placed on parental intentions and that no guidelines have been developed as to the relevance of various independent factors. Thus, the article proceeds to discuss the relative weight to be given to the various factors and to illustrate how the model might be applied in typical relocation and reabduction cases.

The article was written and accepted for publication before the recent decision of the US Court of Appeals for the 9th circuit in Mozes v Mozes. However, a postscript is added which discusses the decision in the light of the analysis in the article.