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Child Custody - What is 'habitual Residence'?

What is 'habitual Residence'?

Determining Habitual Residence of Children

Case Commentary – TUC v TUD [2017] SGHCF 12 & 15

 

The determination of the habitual residence of the child is crucial where there has been an alleged wrongful retention or removal of the child concerned, or where a case concerns an application to stay proceedings on the ground of forum non conveniens.

 

In order to assess habitual residence, it is critical for the date of wrongful retention or removal to be ascertained as the place of habitual residence can change over time. The key question in each case is whether the child concerned is being retained in a jurisdiction without the consent of both parents and if so, at what point this has become the case.

 

Once the date of the allegedly wrongful retention or removal has been determined, the place at which the child was habitually resident immediately before that date shall be assessed. The entire purpose is to secure the prompt return of the abducted child to the country where they were habitually resident.

 

The case of TUC v TUD [2017] SGHCF 12 outlined that the test for habitual residence requires the Court to look at a range of factors which centre around two main concerns: the degree to which the child is settled or isolated in a country and the intention of both parents as to whether the child is to reside in that country. The unilateral intent of one of the parents cannot be a factor to be considered as it would be considered the intention of the abducting parent.

 

The general principle for the question of habitual residence, as elucidated by the Court in TUC v TUD [2017] SGHCF 12, is ultimately a question of fact to be determined having regard to all the circumstances of the case including the joint intentions of the parents, the child’s reasons for and perceptions of being in the new jurisdiction, and the objective indication of the child’s integration into the environment, education system, culture, language and community in that country.

 

However, it must be noted that there is no need for evidence of a joint intention to relocate for a sufficiently long duration before a Court will find that a child’s habitual residence has changed. The clearest situation where habitual residence would unlikely be found to have changed is where there is a short period of stay in the new country and no joint parental intention to relocate even temporarily.

 

Consent

 

The question of consent also arose in TUC v TUD [2017]. The Court stated that the standard of proof in this context is that of the balance of probabilities of whether the left-behind parent has in fact unequivocally consented to the child being removed or retained in a different country.

 

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