What is Habitual Residence and Why it is Best to Check it out
Divorce and immigration lawyers can find it hard to explain the legal concept of habitual residence to some parents who struggle to understand why an English court has the power to make decisions about their child’s future and whether their child can return to their home country.
Family law solicitors emphasise that before you make plans to leave the UK with your child, you should not simply assume that you have the right as a parent to move overseas with your child. It is best to speak to a children lawyer about the concept of habitual residence and how that might affect your rights and the process.
Online and London Family Law Solicitors
What is habitual residence?
Habitual residence is a complex legal concept but it basically means where you or your child ordinarily or habitually live.
The habitual residence of your child is important because if your child is habitually resident in England, the court in England will have jurisdiction to decide matters such as:
- Whether your child should be allowed to move overseas
- The parenting arrangements and residence or custody
- Child contact
- Specific issues, such as the school your child should attend or if your child should be vaccinated or undergo a medical procedure
If you have to go to court because your child is habitually resident in the UK and you can't reach an agreement with the other parent, the court can be asked to make these orders:
- Child relocation order
- Child arrangement order (for custody and contact)
- Specific issue order
- Prohibited steps order
Habitual residence and non-British parents
There is a general assumption that if parents are not British citizens, then UK children law doesn’t apply to their children. That’s because if a parent is in the UK on a visa, it is assumed that the parent and child’s home country should be able to decide on the child’s future if the parents separate and can't agree on what future arrangements are in the best interests of their child.
Family law solicitors say that it isn’t nationality that determines if the English court has jurisdiction over your child. It is the child’s habitual residence. That means you could be in the UK on a skilled worker visa or spouse visa or with indefinite leave to remain and the English court could decide on your child’s future if you split up with the other parent and can't reach an agreement over what is best for your child. That applies even if neither of you are British citizens and neither of you have settled status.
Habitual residence – does it matter?
If a child is habitually resident in England, then you can't take the child overseas to live without the permission of the other parent or a court order. Some parents think that the law won't apply to them and when they separate, they jump on a plane to return to their home country or to a country where they have got a new job or family support waiting.
Children lawyers warn against this because if your child’s habitual residence is in England you could be accused of parental child abduction and the other parent could ask the English court to make a return order.
Habitual residence and return orders
A return order can be made at the request of a parent who has been left behind in the UK. The order says the child must be returned to England. The order relates to the child and not the parent who has taken the child overseas but most parents will return with their child.
A return order does not mean the child will have to remain permanently in the UK. It simply means the child has to return to England for the court to decide on the child’s future. The parent who has taken the child overseas may think that a return order is disruptive to the child but there are only very limited grounds on which you can object to a return order.
Once back in the UK, a parent can apply for a relocation order so they can move overseas with their child and the other parent can apply for a child arrangement order and orders to prevent the child being taken out of England without consent in the future. The English court then has to decide which option is in the best interests of the child.
Habitual residence and children lawyer’s tips
Generally, children lawyers say if you want to move overseas with your child it is best to:
- Get legal advice on whether your child is habitually resident
- Try to get the written agreement of the other parent to your planned move overseas
- If you can't get the written agreement of the other parent, apply to the English court for a relocation order – you are in a better position to secure a relocation order if you follow the correct procedure rather than if you go without court permission and the child is made subject to a return order. Getting the relocation order first is less disruptive and distressing for your child
If you need help with habitual residence questions, or with making a relocation order application, or if you are worried about stopping a potential parental child abduction then our specialist children law solicitors can help.
Online and London Family Law Solicitors