Appeal Court of The Hague

April 3 2019, ECLI:NL:GHDHA:2019:758

Can a child have two habitual residences?

The Appeal Court of The Hague has changed it’s mind on this subject. It has now decided that a child can have only one habitual residence. Even when the parents have been alternately living in two different countries with the child, there can only be one habitual residence. That residence is essential for the Court to decide whether or not the child has been abducted from that country.

Two appartments

This case is about two parents who have met in Spain in 2016. The man was renting an appartment there. The mother has been living in Spain and has been registered at the Dutch Municipality as having an adress in Spain. Even though the couple also spend time in their appartment in the Netherlands, the Appeal Court believes that they spend most of their time in Spain.

Born and raised

Besides that, the children were born in Spain as the result of a mutual decision of the parents. After they were born they spend months in Spain, until the mother took the children to The Netherlands. Although the father spend time in the Netherlands because of his other children, and time in other countries for business, the Appeal Court believes Spain was his base.

The divorce request

The Appeal Court also gives weight to the text of the mother’s divorce request. She filed for divorce in The Netherlands and in that request she wrote that the parties have moved to Spain in 2017, have lived in Spain until the mother left for The Netherlands in 2018, where she now has her habitual residence. The Appeal Court can not see this text as a judicial recognition of the habitual residence of the parties. But the Appeal Court does consider this text relevant for the determination of the habitual residence of the children.

Two habitual residences?

In a decision of the Appeal Court of July 27 2016 (ECLI:NL:GHDHA:2016:2502) the Appeal Court had decided that the child that lived alternately with each of the parents, who lived in different countries, had two habitual residences. In this later ruling of April 3 2019, the Appeal Court refers to the ruling of the Court of Justice of the European Union of December 22 2010. In that ruling the Court of Justice decided that a child cannot have two habitueal residences. This ruling was done in a cases based on article 8 of Brussel II bis, but the Appeal Court took over this decision in relation to this case based on art. 12 of the Hague Convention.


In this case the Appeal Court concludes that the children had their habitual residence in Spain and that the mother has taken them to The Netherlands without the consent of the father. The Appeal Court decides that the mother must return to Spain.

What does this mean for other parents?

The minor’s habitual residence must be determined by the court on the basis of the facts and circumstances specific to each case. Since their can only be one habitual residence, parents should discuss all details on this subject with their lawyers to find out which are relevent. 

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