When a parent moves abroad with the children – do the children automatically lose their residence in this country?

This is quite a technical issue but an important one for parents who may be considering a move abroad to a home country or just a new life.

Child abduction refers to cases where children are taken away from their normal place of residence to another country without the consent of their non resident parent.  It also relates to cases where children are retained by the non resident parent (or other person) after legitimate contact visits.

The law on International Child Abduction is complex and robust.  Their are conventions on Child Abduction (the Hague Convention being the most prominent).

But first you have to know where the child is living.  If a mother takes the children to Spain to live with the father’s consent and then four months later they visit their father and say they are deeply unhappy with their lives in Spain and want to remain in the UK can the father legally retain them?

Each case will be decided on its own facts but in the landwork case of In the Matter of LC (Children)  and In the Matter of LC (Children) (no 2) [2014] UKSC the Supreme Court have ruled that in these precise circumstances that the fact that the mother’s habitual residence had changed and that she was therefore resident in the jurisdiction of the Spanish Courts did not automatically confer Spanish Habitual residence upon the four children of the family.

By ruling that the children’s Habitual Residence was still the UK this means that the overriding objective of returning the children to the Country of their habitual residence where the Spanish Courts would then have jurisdiction to determine any application to then remove them back to the UK was overridden.

International law is dominated by questions of “Habitual Residence” and this case is landmark because it takes an essential child centred rather than parent centred approach to the question.

Specifically the judges in the Supreme Court considered that the child’s state of mind is a relevant factor in determining if he or she has gained or lost habitual residence in the country of origin or place of residence and by extension accepted that a child may have a different place of habitual residence to their resident parent.

Put short if you promise your teenager a great life in Spain and when he or she gets there they realise that this is not the life for them and pine for home  – if they decide on their first or second visit home to see mum or dad that they are not coming back to you you may have a more difficult case than was previously the case.  Whilst the majority of the supreme Court considered that this was so for adolescent children – two of the judges did not feel the question was confined to older children alone.