Helsinki Court of Appeal, 1 October 2008, Decision No 2764

INCADAT legal file Hague parental abduction

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Habitual Residence – Art. 3
The parents presented contrasting cases as to the nature of the move to Scotland. For the mother it was a two week holiday which had been extended. She sought to support her case by arguing that there had been no change of address filed with the Finnish population register, no shipment of goods to Scotland, and a flat had been maintained in Finland.
For the father there had been a permanent relocation and the children’s habitual residence had changed immediately to Scotland. He submitted that: many goods had been brought to Scotland; the Finnish flat belonged to the maternal family; and after returning to Finland the mother had booked a removal service to bring back a van load of possessions.
The Court of Appeal held that a person is considered to have his place of habitual residence in the State where he lives and where he has his actual life environment. In this, special account must be taken of the duration and the continuity of the residence and such other facts regarding the person concerned that indicate actual links to the State where the person is living.
The Court held that a place of habitual residence can change immediately in connection with a move if a child leaves his State of habitual residence with his parents’ consent and with the intention of settling down permanently in the other State.
The place of habitual residence of a child must be considered to be the place where he has been physically living for a duration of time that can he regarded as adequate for the place of habitual residence to become established from the child’s point of view.
When, as in the present case, the children are very young the Court held that it was natural to consider their actual life environment to be that of their parents’ life environment. The Court accepted various views of habitual residence as expressed in Scottish and US case law. The Court affirmed that in the absence of a written agreement indicating the parents’ purpose in going to Scotland, their intention had to he interpreted on the basis of their behaviour.
In the light of the evidence presented, the Court of Appeal did not find the argument that the family intended to go to Scotland for a two-week holiday trip to be credible. It held that even if the parents’ intention was not to remain permanently in Scotland, it was intended to last for the time being and for an appreciable period.
Grave Risk – Art. 13(1)(b)
The mother submitted that a return to Scotland would expose the children to a grave risk of harm because of mental problems suffered by the father. In this she argued that he had been in psychiatric care and been prescribed long-term mood medication. This argument was summarily dismissed by the Court.
Procedural Matters
The Court held that given the circumstances leading to the trial, the mother’s financial position and the significance of the matter for her, it would be unreasonable to order her to compensate the State for the costs awarded to the father’s lawyer.
Author of summary: Peter McEleavy