Establishing Habitual Residence in Child Abduction Cases: Insights from [2020] CSOH 80

Introduction

The case of JP vs. AAR and ENM ([2020] CSOH 80) adjudicated by the Scottish Court of Session delves into the complex intersection of international child abduction law and the determination of habitual residence. The petitioner, JP, sought orders under the Child Abduction and Custody Act 1985 against AAR, her former partner and the child's father, and ENM, AAR’s partner. The central issue revolves around whether the child, Bella, retained her habitual residence in Italy or had acquired a new habitual residence in Scotland, thereby influencing the applicability of the Hague Convention in her retention within Scotland.

Summary of the Judgment

The court meticulously analyzed the facts surrounding Bella's relocation from Italy to Scotland on 18 January 2018. While the petitioner contended that Bella's retention in Scotland was wrongful, asserting that Bella maintained her habitual residence in Italy due to the unstable and neglectful circumstances during her stay in Scotland, the respondents argued that Bella had established habitual residence in Scotland. The court examined the periods before and after Bella's placement in foster care, the degree of integration into Scottish society, and the continuity of her residence. Ultimately, the court concluded that by September 2018, Bella had indeed acquired a habitual residence in Scotland, thereby rendering the Hague Convention inapplicable in this case. Consequently, the petition was dismissed.

Analysis

Precedents Cited

The judgment referenced pivotal cases that have shaped the interpretation of habitual residence within the Hague Convention framework:

A v A and Another (Children) [2013] AC 1: The UK Supreme Court emphasized that habitual residence is a question of fact, focusing on the child's social and family environment rather than the parents' intentions.
In re B (a child) [2016] AC 606: Lord Wilson discussed the dynamics of losing one habitual residence while acquiring another, using the see-saw analogy to describe the balance between integration in the new state and disengagement from the old state.
In re R (Children) [2016] AC 76: Lord Reed highlighted that the stability of residence is paramount, not the permanence, and that there is no specific duration required for establishing habitual residence.

These precedents collectively underscore a fact-based, child-centric approach to determining habitual residence, prioritizing the child's integration into the social and familial environment of the host country.

Legal Reasoning

The court approached the determination of habitual residence by dissecting Bella's circumstances during two critical periods: from her arrival in Scotland on 18 January 2018 until her reception into foster care on 26 June 2018, and from late June until 10 September 2018. Factors such as Bella's limited exposure to the English language initially, her enrollment in school, the stability provided by foster care, and the respondents' proactive engagement with social services were pivotal in assessing her integration into Scottish society.

The court found that despite initial instability, Bella progressively integrated into Scottish life, evidenced by her school attendance, language acquisition, and social interactions. The ongoing discussions about kinship care in Italy were interpreted not as indicators of retained habitual residence but rather as procedural considerations given her Italian origins. The dismissal of custody proceedings in Italy further reinforced the notion that Bella's habitual residence had shifted to Scotland.

Importantly, the court dismissed the petitioner's assertion of a predetermined return date as unsupported by substantive evidence, undermining the argument that Bella's residence in Scotland was temporary.

Impact

This judgment reinforces the principle that habitual residence is determined by the child's degree of integration into the social and familial fabric of a country, rather than by the intentions or agreements between parents. It clarifies that even in the face of custodial challenges and initial instability, the gradual establishment of roots—through schooling, language acquisition, and social engagement—is sufficient to establish habitual residence.

The decision also highlights the court's reluctance to rigidly interpret return agreements or predetermined dates without corroborative evidence, emphasizing a flexible, fact-driven approach. This may influence future cases by encouraging a more nuanced examination of the child's lived experiences over formal agreements or parental intent.

Complex Concepts Simplified

Habitual Residence

Habitual residence refers to the country where a child has established regular, routine, and habitual living patterns, reflecting a degree of integration into the social and family environment. It's a flexible concept, not tied to legal status or domicile, and is determined by examining the actual living conditions and relationships rather than intentions or temporary arrangements.

Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty aimed at ensuring the prompt return of children who have been wrongfully removed or retained across international boundaries. It seeks to protect the rights of both parents and children by discouraging international abductions and promoting the return of children to their habitual residence.

Joint Investigative Interview (JII)

A Joint Investigative Interview (JII) is a formal process where law enforcement and social work officials collaboratively interview a child to gather information about allegations of abuse. It's designed to ensure that the child's statements are accurately understood and appropriately handled by both legal and welfare professionals.

Conclusion

The judgment in JP vs. AAR and ENM serves as a pivotal reference point in understanding the determination of habitual residence within the context of international child abduction cases under the Hague Convention. By prioritizing the child's actual integration and lived experiences over parental intentions or formal arrangements, the court underscores a child-centric approach to legal adjudication. This decision not only clarifies the application of established precedents but also sets a nuanced precedent for future cases, ensuring that the best interests and welfare of the child remain paramount in complex international custody disputes.