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.
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.
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.