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First of all, we need to make it absolutely clear what we are talking about by defining some terms.

Abduction

Child abduction is the removal by one parent of a child under the age of 16 across an international border with neither the knowledge nor consent of the other parent or those with parental responsibility. Removal of a child across national borders within the United Kingdom does not constitute abduction.

Child abduction is a criminal offence under the Child Abduction Act 1984.

Habitual residence

The concept of a child’s habitual residence is an issue hotly litigated largely because it is not defined in legislation. The rule was set by Lord Scarman in Regina v Barnet L.B.C., Ex parte Shah [1983] 2 AC 309, in which he said that the emphasis should be

not on intention or expectation for the future which is implicit in the idea of permanence, but on immediately past events, namely the usual order of the applicant's way of life and the place where in fact he has lived.

This was the interpretation given by the Court in Re H-K (Children) [2011] EWCA Civ 1100 in which an Australian couple who had come to Britain for only a temporary stay of one year were nonetheless considered to be habitually resident here for the purposes of the proceedings.

A further leading case is Friedrich v Friedrich, 983 F2d 1396, 1401 (CA 6, 1993), in which the US Court of Appeals for the Sixth Circuit set out the following guidelines:

· a person can have only one habitual residence;

· habitual residence is not determined by a child’s citizenship;

· habitual residence depends on a child’s customary residence prior to removal; the Court must look back at where the child was living at the time of removal, not forward to where the child is to live in the future;

· habitual residence can only be altered by a change of location and by the passage of time, not by changes in parental affection and responsibility; the change in location must occur before the questionable removal.

In the further case of Feder v Evans-Feder, 63 F3d 217, 224 (CA 3, 1995) the US Appeal Court held that: ‘A child’s habitual residence is the place where he or she had been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective’.

Consider also the judgement in Dickson v Dickson 1990 SCLR 692:

A person can, we think, have only one habitual residence at one time and in the case of a child, who can form no intention of his own, it is the residence which is chosen for him by his parents. If they are living together with him, then they will have their residence in the same place. Where the parents separate... the child’s habitual residence cannot be changed by one parent unless the other consents to the change. That seems to us to be implied in the Convention.

This definition establishes a substantial distinction between cases involving relocation abroad and run-of-the-mill contact cases.

Just as a child may only have one habitual residence he cannot be without a habitual residence as that would mean no court would have jurisdiction. In TLMP v AWP [2012] CSOH 121 from the Scots jurisdiction Lord Stewart offered his own view that a child has to be habitually resident somewhere, and that there cannot therefore be relinquishment of one residence without the simultaneous acquisition of another. Otherwise a child would be consigned to a ‘jurisdictional limbo’ from which he could not be wrongfully removed.

In Re J (Habitual Residence), Re [2012] EWHC 3364 (Fam) a grandmother who had a residence order in her favour and thus limited PR sought to change a child’s habitual residence by removing the child, born in England, to America. The mother and the man named as the father on the birth certificate, who both had PR but no involvement in the child’s life, gave their consent after the removal. The biological father who had no PR but had always been significantly involved objected.

The grandmother claimed this was a legitimate removal under Section 13 of the Children Act which allows removal for up to 28 days when those with PR consent. Judge Peter Jackson rejected this argument on the grounds that for removal to be legitimate consent had to be granted in advance and that the removal was intended to be permanent and not for only 28 days; s.13 cannot be used to legitimise a permanent removal. Habitual residence depends on a matter of fact, not on who has PR for the child, and a child cannot lose her habitual residence as a result of an illegitimate removal of only 13 days.

Settled

The law frequently refers to a child who has been removed from the jurisdiction as being ‘settled in his or her new environment’. This is a very important concept in terms of changing the habitual residence, and has two components:

1. The child must be physically integrated into the new community and an environment, with a new home, with new or existing relatives, attending a new school, making new friends, etc.

2. The child must be emotionally and psychologically secure and stable within the new environment (this was established by Thorpe LJ in Cannon v Cannon at paragraph 61).

A child is usually deemed to be ‘settled’ after a year in the new environment; once a child is ‘settled’ it is much more difficult, if not impossible, to repatriate him. The term is used in a specifically legal context; thus a child can be unsettled psychologically (as we’ll see), but nevertheless sufficiently settled to satisfy the legal definition.