What does the future hold for habitual residence, asks Clare Renton
The concept of habitual residence underpins jurisdiction in much English family law. It is critical in many if not most cases involving divorce, maintenance and children. Without habitual residence in England on the critical date, the court may be obliged to wash its hands of the matter. The reported cases repeatedly emphasise that habitual residence is a question of fact. That being so, one might wonder why the issue spawns so many cases at a high judicial level. There are decisions in the European Court of Justice (ECJ) on interpretation in the EU context, more under the Hague Abduction Convention 1980, others under domestic legislation. In particular the habitual residence of dependent children is been fraught with uncertainty.
In September 2013 the Supreme Court handed down its judgment in the case of Re A (Children) [2013] UKSC 60, [2013] 3 WLR 761, to family practitioners agog with expectation. The lead judgments were given by Baroness Hale and Lord Hughes. The facts of the case were relatively simple. A mother had given birth in Pakistan
