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Hayden J expresses concern about preparation of ‘habitual residence’ cases

Such cases are a factual exploration and must be ‘child driven’

In B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam), Mr Justice Hayden has said that if there is one clear message emerging both from the European case law and from the Supreme Court in cases concerning the habitual residence of a child, it is that the child is at the centre of the exercise. This will involve a real and detailed consideration of (inter alia): the child's day to day life and experiences; family environment; interests and hobbies; friends etc. and an appreciation of which adults are most important to the child. The approach must always be child driven.

In his judgment Hayden J expressed some concern about the preparation of these types of cases, with statements focusing predominantly on the adult parties. He considered that if lawyers followed the correct approach more assiduously, the very discipline of the preparation was most likely to clarify where the child is habitually resident and to lead to a reduction in enquiries in the courtroom. Habitual residence is essentially a factual issue and ought therefore in the overwhelming majority of cases to be readily capable of identification by the parties.

Paragraph 18(i) to (iv) is therefore important reading for lawyers preparing cases involving habitual residence issues:

i) The solicitors charged with preparation of the statements must familiarise themselves with the recent case law which emphasises the scope and ambit of the enquiry when assessing habitual residence, (para 17 above maybe a convenient summary);

ii) If the statements do not address the salient issues, counsel, if instructed, should bring the failure to do so to his instructing solicitors' attention;

iii) An application should be made expeditiously to the court for leave to file an amended statement, even though that will inevitably result in a further statement in response;

iv) Lawyers specialising in these international children cases, where the guiding principle is international comity and where the jurisdiction is therefore summary, have become unfamiliar, in the judge's opinion, with the forensic discipline involved in identifying and evaluating the practical realities of children's lives.  They must relearn these skills if they are going to be in a position to apply the law as it is now clarified.

Hayden J considered that the simple message must get through to those who prepare the statements that habitual residence of a child is all about his or her life and not about parental dispute.  It is a factual exploration.

For the judgment and full summary by Victoria Flowers of Field Court Chambers from which this news item is derived, please click here.

5/9/16