Court Stresses Need for Facts in Child Residence Dispute

Divorces with an international dimension are often complex and, where the question arises as to which parent will look after children and in which country, the courts are often involved.

When making these decisions, the courts will always put the child's interests first. When the child is mature enough to express their view, their wishes will carry a great deal of weight. In the case of younger children, the question of the child's 'habitual residence' will weigh more heavily.

The child at the centre of a recent court tussle was only three years old when her parents' dispute came to court. Her father claimed she was habitually resident in England and Wales, whereas her mother claimed she was habitually resident in New York. As is not uncommon, the child had actually spent time in several different countries already.

The court will of course pay attention to which parent the child appears to be closer to and which is most able to provide a stable and loving home. Normally, these issues are at best clouded by disagreement between the parents as there is seldom any degree of concord in their statements.

In addition, the practical approach taken by the courts is informative in such cases. It looks at the facts applicable to the situation:

  • Where the child has in fact spent time;
  • Where his or her friends are;
  • What the child's interests and hobbies are and how their pursuit of these will be affected; and
  • The relative importance of these.

After considering these factors in detail, the High Court concluded that the girl was habitually resident in the UK.