The Hague Child Abduction Convention aims to ensure the immediate return of children who have been unlawfully transferred or detained in a Contracting State. The treaty serves to protect the children, but also to protect existing rights of access. In order to do so, the court needs to know what is the habitual residence of a child.
The procedure in which the court is requested to order the return of the child is conducted in the country where the child is currently residing. That court must determine the habitual residence of a child. The country where it previously lived, or the country where it now resides?
Habitual residence
The Child Abduction Convention does not define the ‘habitual residence’. The interpretation of the term must be found in case law. The Court of Justice of the European Union says that a child’s habitual residence is where, in fact, is the center of his life. It is about the place that expresses a certain integration of the child in a social and family environment. In previous court decisions various factors are mentioned, which can partly determine the habitual residence of the child.
These include:
– The duration, regularity, circumstances and reasons for the stay in a country and the relocation of the family to that country
– The place and conditions under which the child goes to school
– The child’s language skills
– The family and social ties of the child in that country.
This may include practical matters such as:
– Does the child go to the dentist, general practitioner in the country where he is staying now?
– Is the child a member of a sports association?
– Did the child make friends?
– Did the child go to that country for a temporary purpose, such as vacation?
Infant
In case of an infant, the geographical and family roots of the caring parent with whom the child now resides and the social and family ties of that parent and the child in that state must be taken into account. When the parents are separated and the child sees the non-caregiving parent regularly, the family environment in which the child is integrated can also be formed by both parents. The parents’ intention to settle in a particular state may be considered, but it may not be decisive. The fact that the parents originally intended that the child would be born in a different state, or that the child has cultural ties with a country, or has the nationality of a country, is not in itself decisive, but is taken into account.
The Netherlands
In the Netherlands, the Supreme Court has described habitual residence as: “the place with which the child has the closest social ties immediately prior to his transfer.”
No habitual residence?
In principle, it is also possible that no habitual residence can be established and that the Child Abduction Convention is therefore not applicable at all. After all, it cannot then be established that the child was habitually resident in a Contracting State.
Multiple habitual places of residence?
It is possible that a child stays alternately in two countries, either always with both parents together, who also travel back and forth, or by traveling back and forth between the two parents who each live in a different country. Since 2019, the Court of The Hague has assumed that a child cannot have two habitual places of residence.
Conclusion
Before starting an child abduction procedure, one much do research to see if there are enough arguments and proof to say the habitual residence is elsewhere. If that can not be argued, it is better to start a different kind of procedure. Feel free to contact our office, if you need assistance.
You can read more information about international child abduction:
www.carefulchildrelocation.com
Or read our A-Z, our FAQ or our page about international child abduction.