In a world where families are mobile for work or lifestyle things can become complicated from an international family law perspective. If a parent wishes to relocate with the child it must first be decided where habitual residence is.
You say Tomato, I say Tomahto
At Maguire Family Law, we always want to make sure that we put out blogs which are both useful and interesting for those who read them
One of the things that always interests us (and we hope interests you too!), is how different countries approach family law issues. These sorts of comparisons are becoming increasingly relevant given the international lives of our clients. Whether moving for work, to promote family ties or just to enjoy some nicer weather, families are moving between countries more than ever.
Over the next few weeks, our Abigail Reynolds and Jennifer Curtis will be looking at some of the similarities and differences we’ve come across that may perhaps come as a surprise to people and, importantly, may give rise to important legal issues which need specialist legal advice.
Some of the comparisons come to our attention through reports in the news, seeing how things are portrayed in TV programmes or hearing about what clients have experienced. Our first example, however, comes from a discussion on a particular case with a lawyer in the US and a significant case he had been following through the courts there.
The case mentioned is the US Supreme Court decision in Monasky v Taglieri. This is an important case internationally because it sets out how the courts in America determine where a child is considered habitually resident i.e. what country is considered the child’s usual place of residence.
Both England & Wales and the US are signed up to The Hague Convention on Civil Aspects of International Child Abduction (‘The Hague Convention’). The Hague convention was created to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return.
Article 3 of The Hague convention states that:
The removal or the retention of a child is to be considered wrongful where –
- a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
- b)at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
This therefore raises the question as to how is habitual residency determined?
In England and Wales habitual residence is determined on a fact by fact basis. A child’s habitual residence can change over time and is unique to the facts of the case. There is not necessarily a time frame on how long a child should be living in one country before there would be considered habitually resident there – again, this has to be considered on a case by case basis.
In the US case of Monasky v Taglieri the Father issued an application in the US for the return of the parties’ child, stating that the child had been wrongfully removed from their place of habitual residence.
By way of background, the parties married in the US in 2011 and two years later relocated to Italy. Neither had definite plans to return to the United States. During their first year in Italy, they lived together in Milan, but the marriage soon deteriorated.
In 2014, the Mother became pregnant. The Father gained employment in a different town and they lived around three hours apart. This alongside a difficult pregnancy placed strain on their relationship. The Mother looked into returning to the United States. She applied for jobs there, asked about U. S. divorce lawyers, and obtained cost information from moving companies. At the same time, though, the parties made preparations to care for their child in Italy. They inquired about childcare options there, made purchases needed for their baby to live in Italy, and found a larger apartment.
Their daughter was born in February 2015, shortly thereafter the Mother stated that she wanted a divorce (a matter which had come up before), and that she anticipated returning to the United States. Later, however, she agreed to join the Father in his home in Lugo, Italy, with their child. The parties dispute whether they reconciled during this time.
In May 2015 the Mother fled with their child to the Italian police and sought shelter in a safe house. The Mother alleged that she had suffered abuse from the Father and feared for her life. Two weeks later the Mother left Italy and moved to Ohio to live with the Mother’s parents. The Father then sought the return of the child in the US Courts under The Hague Convention stating that the child was habitually resident in Italy.
The District Court in the US granted the return of the child stating that the parents shared intent for the child to live in Italy. The District Court’s decision was later reviewed and ultimately the Supreme Court rejected the Mother’s argument that the child’s habitual residence could not be Italy because there was no actual agreement by the parents to raise the child in Italy.
The final view taken by the Supreme Court appears to be quite similar to the approach under English law. The US Supreme Court stated that a child’s habitual residence depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents.
Whilst we cannot advise on the implications of the US Supreme Court’s decisions for cases more generally in America, we did enjoy reading the decision of Justice Thomas who quoted a decision from Lady Hale of the Supreme Court of the United Kingdom! He referred to her 2013 decision in A v A: “As she explained, for many years “the English courts [had] been tempted to overlay the factual concept of habitual residence with legal constructs” creating legal rules that dictated a child’s habitual residence.” It would seem that judges on both sides of the Atlantic have had to consider how they can best interpret the legislation to ensure clarity and certainty, whilst also acknowledging the broad range of circumstance that can come before the court. They also have to take into account that, ultimately, however you interpret the question, each court is trying to do the right thing for often very vulnerable children.
In any case involving the abduction of a child it is important to act as soon as practically possible. It is easy to see how a delay in bringing proceedings could result in a child becoming habitual resident in another country and the limitations that this may have on a parent making an application for the return of the child. We always encourage our clients to seek specialist advice from a lawyer who is qualified to practice in any other country involved; and have a number of connections we can use to help clients find the right advice.
Here at Maguire Family Law we have extensive experience in issues surrounding child abduction. If you require our assistance then please contact our expert team on 01625 544650.