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Habitual Residency - How do you prove it?

by Karen / Posted 19/04/2010 / Updated 09/09/2012

Does anyone have any experience of attempting to prove that the child has two habitual residences?

We moved to Dubai 18 mths ago from the UK. My ex-partner agreed to the move and we have a UK court order specifying the dates that he would see the children in the UK or in Australia where he has since moved and been granted permanent residency. The children visited for a holiday this Easter and now he is refusing to return them stating that they are unhappy and want to live with him. I want to apply for their return under the HC, but I have to prove that their habitual residency is the UK, and not Dubai. I know this will be difficult, but we still retain our family home in the UK and it is not rented. We didnīt take anything to Dubai other than suitcases, and we have always been unsure how long we would stay. The children attended schools there, but that is the law. Can anyone give me any advice or help, or case studies where this has been successful?

Responses

From jane O´Brien / Posted: 24/04/2010
Karen
I am so sorry to hear about your situation I can understand completley as I have been through a very similar. In the UK Supreme courts with the HC. How old are your children? Were were they born? Have you contacted Reunite yet? Habitual residency can be difficult, that said though I wish I HAD gone for it though as I have lost my child four years of age now to the USA judical system and am now in a legal disaster.
Jane
From Mandy M / Posted: 03/05/2010
It is not possible for a child to have more than one habitual residence. I am sorry to say that on the information you have given I would say that the Hague Convention would likely rule that their Habitual Residence is in Dubai, especially given the length of time spent there and their schooling. I would seek expert legal advice immediately.
From annette / Posted: 03/05/2010
Karen
Like Jane I went through the Supreme Courts with the HC. The courts could not decide custody because I was considered a resident of the USA. I also lost my case because of the USA judicial system. However went I first came back to the UK I had to prove Habitual Residency to obtain benefits.Normally 2 years in a country will validate you as a resident and because I hadn´t been in the UK that long, the courts could not go against their HC with the US. Basically you have to prove you are settled in the UK ie. schools, church, doctors, family connections etc.. I wish you the best of luck x
From NH / Posted: 31/05/2011
Have you thought to try domestic Australian law as well as 1980 Hague Treaty on Civil Aspects of International Child Abduction?

Who had custody? Order type?

On Hague, search incadat on Hcch, I have seen a couple of dual HR cases at least.

He has a UK court order to SEE the children in UK or Australia?
Odd that second choice; BUT NOW UNUSUALLY IT WORKS IN YOUR FAVOUR.
At the time he was in UK, prior to your move to Dubai.
Yet he may already have had long-term plans on abusing Dubaiīs non-Hague legal status.

Did they fly out of UK or Dubai? It would only take a day or so to re-acquire UK Habitual Residence.
It was only your habitual residence intention at that point, with ex having no say.

You were both in UK when he orignally agreed to your relocation to Dubai, without his residence.
Rights of Custody, includes Art 5a "right to determine the childīs place of residence".
You could set the place (not just country), he didnīt.

Art4, "The Convention shall apply to any child who was habitually resident in a Contracting State IMMEDIATELY before any breach of custody or access rights."

Would point to Dubai at this point. (IMHO). In re shah, degree of settled purpose.

May preclude its use, but Australia is a contracting country, so may sympathize with you relocating back to UK now.

He has a UK court order for holiday in Australia.

Prepare for slam-dunk... NO BREACH *** YET *** AS THEY ARE ON COURT ORDERD HOLIDAY IN AUSTRALIA. WHO DECIDES HOLIDAY IS TOO LONG, YOU!

Get yourself to the UK, as quickly renewed habitual residence.

Childrenīs HR follows yours, as they are dependents. Donīt actually need child as on holiday in Australia, and under UK court order.

THEN ask for return.

Now breach, but habitual residence is UK.

Art 3. The ... retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody ...under the law of the State in which the child was habitually resident IMMEDIATELY before ... retention; and
b) at the time of ...retention those rights were actually exercised ... or would have been so exercised but for the ... retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

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