Saturday, May 23, 2015

Supreme Court decision on habitual residence in Scottish case


The Supreme Court has handed down a decision in a Scottish child abduction case that has some noteworthy things to say about a child's habitual residence.

AR v RN (Scotland) [2015] UKSC 35 concerned two children who had been brought to Scotland from France by their mother, with their father's consent, with the intention that they live in Scotland for about a year. However, some four months later the relationship between the parents broke down and the mother applied for a residence order in Scotland.  The father argued that the initiation of those proceedings was a wrongful retention within the meaning of the Convention, on the basis that the children were habitually resident in France immediately before proceedings commenced.

At first instance the court agreed with the father. However, that decision was  reversed on appeal and the father therefore appealed to the Supreme Court. The Supreme Court dismissed the appeal, saying that in determining habitual residence, the focus is upon the situation of the child, with the intentions of the parents being merely one of the relevant factors. The important question is whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent. Here, the children's home was Scotland for the time being, their social life and much of their family life being there. Accordingly, the question of wrongful retention did not arise.

A press summary of the judgment can be found here, and the full judgment here.

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