Text of the Hague Convention on Abduction

ICARA - International Child Abduction Remedies Act

Some of our articles on international child abduction:

How to Win a Hague Convention
Child Abduction Case

Hague Convention Overview

Judicial Prevention of International Child Abduction

Habitual Residence

Acquiescence or Consent

When the Hague Convention Won't Help

Habitual Residence

Hague Convention on International Child Abduction: Habitual Residence

by Jeremy D. Morley

Every case that is brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction requires a determination of the habitual residence of the child in question. The concept of habitual residence is key to the operation of all aspects of the Convention -- and yet it is not a term that is defined in the Convention itself.

The Explanatory Report by E. Perez-Vera, the official reporter of the Hague Conference on Private International Law, has been accepted by all contracting parties as the official interpretation of the Convention. Actes et documents de la Quatorzieme session, vol. Ill, 1980, p. 426. The explanatory report is recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it.

In her Report, Ms. Perez-Vera made it abundantly clear that the Convention is intended to prevent the removal of a child from his or her 'habitual environment' without the consent of the person or persons who have the rights of custody of the child.

Ms. Perez-Vera stated that the overwhelming and fundamental purpose of the Convention was to return a child taken out of his habitual environment, without the consent of the custodial parents, to the child's home.
 
In reviewing the kinds of cases that are intended to be covered by the Convention, Ms. Perez-Vera stated (Perez-Vera Report, Para. 11) that:

The variety of different circumstances which can combine in a particular case makes it impossible to arrive at a more precise definition in legal terms. However, two elements are invariably present in all cases which have been examined and confirm the approximate nature of the foregoing characterization.

Firstly, we are confronted in each case with the removal from its habitual environment of a child whose custody had been entrusted to and lawfully exercised by a natural or legal person. Naturally, a refusal to restore a child to its own environment after a stay abroad to which the person exercising the right of custody had consented must be put in the same category. In both cases, the outcome is in fact the same: the child is taken out of the family and social environment in which its life has developed. What is more, in this context the type of legal title which underlies the exercise of custody rights over the child matters little, since whether or not a decision on custody exists in no way alters the sociological realities of the problem.

Secondly, the person who removes the child (or who is responsible for its removal, where the act of removal is undertaken by a third party) hopes to obtain a right of custody from the authorities of the country to which the child has been taken. The problem therefore concerns a person who, broadly speaking, belongs to the family circle of the child, indeed, in the majority of cases, the person concerned is the father or mother.

(emphasis added)

In Paragraph 35 of her Report, Ms. Perez-Vera stated:

The Convention on the Civil Aspects of International Child Abduction is above all a convention which seeks to prevent the international removal of children by creating a system of close co-operation among the judicial and administrative authorities of the contracting States. Such collaboration has a bearing on the two objects just examined, viz, on the one hand, obtaining the prompt return of the child to the environment from which it was removed, and on the other hand the effective respect for rights of custody and access which exist in one of the Contracting States.
(emphasis added)

Thus, the Perez-Vera Report establishes that the fundamental thrust of the Convention is to prevent the removal of a child from the place of his or her environment. Time after time, the Report stresses the need to be concerned about 'the habitual environment' of a child; about a refusal to restore a child to its own environment after a stay abroad; about preventing a situation in which the child is taken out of the family and social environment in which its life has developed; and about obtaining the prompt return of the child to the environment from which it was removed.

The focus on the concept of not disturbing the residency of a child who is  settled in an environment is expressly set forth in the Convention itself. Article 12 of the Convention provides that, if an application to return a child is not made until one year has passed from the date of the taking or holdover, the child should not be returned to the prior habitual residence if the child has become settled in his or her new environment.

Specifically, Article 12 of the Convention provides that:

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.           (emphasis added)

Accordingly, Article 12 makes it abundantly clear that the Convention is intended to ensure that children are not taken from their settled environment.

Additional authority for the fact that the subjective intention of the parties should not normally determine habitual residency is supplied by the Council of Europe.

The Explanatory Report on the European Convention on the Control of the Acquisition and Possession of Firearms by Individuals (1978), prepared by the committee of experts and submitted to the Committee of Ministers of the Council of Europe (http://conventions.coe.int/Treaty/en/Reports/Html/101.htm), sets forth the Council of Europes interpretation of the meaning of the term habitual residence.

The Report specifies that:
The concept of residence depends on the consideration of objective facts. Generally speaking, little weight is placed upon the intentions of the person concerned or upon the outward signs of those intentions.

The Report expressly states that, for a residence to be habitual, there should be the establishment of a household or the carrying on of an occupation at the place of residence. The Report states further that stability may be reflected either in the length of stay or in a particularly close tie between the person and the place. Thus, the Report states that:

Certain factors are regarded as more important for the purposes of habitual residence than for the purposes of simple residence, namely the establishment of a household or the carrying on of an occupation at the place of residence. The word 'habitual' should therefore be interpreted literally, i.e. as implying a more stable territorial link. That stability may be reflected either in the length of stay or in a particularly close tie between the person and the place.

Recent U.S. cases on habitual residence and the Hague Convention

by Jeremy D. Morley

Many cases in the U.S. have reviewed the standard for determining whether there has been a change of habitual residence.

 Here are some of the most significant:

Kijowska v. Haines, (7th Cir. Sept. 8, 2006) 

A Polish woman had a child with an American man while she was temporarily and illegally in the U.S. The father disavowed the child and the mother returned with the baby to Poland. The mother then brought the baby to the U.S. to visit the father but she was refused entry because the father falsely alleged that she was not intending to return to Poland. An Illinois state court then issued an ex parte custody order to the father and the father took possession of the baby based on that order. The mother brought suit under the Hague Convention for her daughter to be returned to Poland. The 7th Circuit (opinion by Posner, CJ) affirmed the federal district court’s determination that the U.S. was not the child’s habitual residence merely because she was born in the U.S. and that the child’s prolonged stay with her father did not mean that the child had acquired a new habitual residence. Since the mother was an illegal alien, she had had no choice after the child was born but to leave the U.S. and take the child back to Poland. It was significant that the father had made no effort to obtain custody at that time either in the US or Poland. Therefore, Poland became the child’s habitual residence. Under Polish law, an unwed mother has custody of her child. Since the Hague convention requires custody to be determined under the law of the child’s place of habitual residence, Illinois custody order in favor of the father was “irrelevant”. Accordingly, the child was ordered to be returned to her mother in Poland.

 Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005).

 Parents lived in Bathurst Island, one of the Tiwi Islands in the Northern Territory in Australia with their young son. They decided to move away from Bathurst Island but had not decided where. The mother took the child, now age 4, to Delaware, USA and refused to return him to Australia. The Court of Appeals ruled that the only uncontradicted evidence of settled intent by the parents was that they wanted to move away from the harsh circumstances of the Tiwi Islands. But there was no settled intention to abandon the existing habitual residence. The Court ordered that the child be returned to Australia.

 Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005)

To determine habitual residence, the court should look first to the parents' last shared intention but should also consider whether the evidence points unequivocally to the conclusion that the child has become acclimatized to its new surroundings. The shared intent of the parents is not dispositive of a child's habitual residence. A court must additionally examine the evidence to determine if it unequivocally points to the child having acclimatized after being taken to a new country and thus acquired a habitual residence in that country.

 Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004), cert. denied 162 L. Ed. 2d 871, 125 S. Ct. 2938 (2005)

The parents of an infant agreed that their child would reside with the mother in Canada for a period of two years and then would return to the United States depending on certain conditions. The court found that the fact that the mother and child were to return to the United States subject to certain conditions did not in any way diminish the parents' settled intention that the two were to remain in Canada for at least two years. The court characterized this as an intent to abandon the United States for a definite and extended period in the life of the infant. Together with a settled purpose, this agreement shifted the habitual residence of the child to Canada.

 Karkkainen v. Kovalchuk 445 F.3d 280 (3d Cir. 2006)

 The mother lived in Finland, the father lived in the U.S. The child lived with her mother in Finland but visited the U.S. When the child was 11 the parents agreed that she would spend the summer in the U.S. with her father. At the end of the summer the child insisted on staying in the U.S. The court found that the parents had had a shared parental intent to permit the girl to choose her country of residence. The court also found that, by the end of the summer, the child had acclimatized to the U.S. From her perspective, there was a degree of settled purpose to remain in this country. Therefore the habitual residence was the U.S. and the Hague application was denied.   

Koch v. Koch, 450 F.3d 703 (7th Cir. 2006)

 The parents (an American father and a Germany mother) living in Wisconsin with two young children, moved to Germany intending to save money for a down payment on a home and then return to Wisconsin after 2 or 3 years (according to the father) or 5 years (according to the mother). They closed their U.S. bank accounts and took the majority of their possessions with them. After 3 years in Germany the father unilaterally took the children to Wisconsin. The court found that the habitual residence was in Germany since the parents shared a settled intention to move there for an indeterminate period, defined by their financial circumstances and the father's employment goals. “Although they also shared a subjective wish to someday return to the United States, habitual residence is not determined 'by wishful thinking alone.'... The establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time."