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Habitual Residence

 

Habitual Residence

I found this interesting when looking up definitions. It compares Habitual Residence and Domicile. My attention was taken to the part the part that says "The Hague Conference on Private International Law has deliberately refrained from offering a definition so that the concept may be flexible and adaptable to practical requirements. Thus, habitual residence may be interpreted differently in different Conflict situations"

So our childrens destiny is left to point scoring judges?

To establish a domicile of choice, it is necessary to have a clear factual base in one state and that must be accompanied by an animus semper manendi, an intention to reside there indefinitely. Although it is not so difficult to produce evidence that an individual has established a home in a state, it is very difficult to prove that someone has no intention of ever establishing a home in another state. The test for habitual residence is less demanding. The court focuses on the past experience of the individual, and not so much on future intention. A person can have only one habitual residence. It is the place where the individual ordinarily resides and routinely returns to after visiting other places. It is the place he or she would consider to be "home" and it is established as a matter of geography over a reasonably significant period of time. Since habitual residence is a test of fact, it cannot be a purely legal concept and there are different views about the factual situations which it is supposed to denote. Some authors believe that the sole criterion that the test of habitual residence should be purely objective, seeking evidence of physical presence over a considerable period of time. Others assert that the test should be both objective and subjective elements, i.e. the factum or physical presence in a given place and the animus to continue to stay there. The Hague Conference on Private International Law has deliberately refrained from offering a definition so that the concept may be flexible and adaptable to practical requirements. Thus, habitual residence may be interpreted differently in different Conflict situations. However, the core of the test will tend to be based on evidence of a long-term stay accompanied by other evidence of the individual's personal and professional life to demonstrate the continuity of the connection between that person and the place of residence. To that extent, the intention of the individual may have some weight

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Submitted by Rainbow on Sat, 2008-01-26 07:09.

In my opinion,when determining the place of Habitual Residence, the Hague Convention needs to consider:
1. What are the views of the children?
2. For young children, the Primary Carer is likely to be the most important place of Habitual Residence.
3. In which country are the basic material/emotional needs of the children met i.e. housing, level of income, education etc?
4. In which country do both parents have the right to live and work?

In order to achieve a decision in favour of the children involved; the Hague Convention cannot afford to ignore the welfare question.

Submitted by stacey on Fri, 2007-11-23 12:36.

In my case was told that habitual residence was a country in which a child had lived for 12 months or more and that country automatically has juristiction over that child. For supposedly intelligent people these judges don't half get it wrong. If I go on holiday over christmas for a month to Catmandu and it begins to feel like home should I be forced to stay there???? Call me stupid but I think not!!!!
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