Habitual Residence – Art. 3
The mother argued that the child’s residence had at all times been in Finland and that the time spent in Canada had been temporary. It was her case that before the child’s birth she and the father had agreed to move to Finland. The father submitted that there had never been such an agreement.
The Court considered general principles surrounding the concept of habitual residence. It noted that the Government proposal for amending the Child Custody and Right of Access Act and section 8 of the Act on the recognition and enforcement of a foreign decision on maintenance obligations, provided that a person is habitually resident in the State in which he de facto lives and where his principal living environment is found.
When determining habitual residence regard shall be paid to objectively observable factors, including the duration and continuity of residence, social connections and other comparable facts relating to the person or his profession which indicate he has factual bonds to the country where he resides.
The Court accepted that a habitual residence might change immediately where a person moves with a settled intention to reside permanently in another country and this might extend to a child where the move is with the consent of both parents.
A child’s habitual residence is a place where he has lived for such a period of time that it may from his point of view be considered to be a sufficiently stable residence. In the case of a young child, who can form no intention of his own, the custodians’ habitual residence, family connections and other social relationships are to be taken into account.
Turning to the facts of the case, the Court considered from the evidence that there had been no binding agreement by the parents that the child would move to Finland. Given this and in the light of the time spent in Canada and Finland, the Court held that when retained the child was habitually resident in Canada.
The mother was ordered to compensate the father for the costs incurred in the return of the child.
Author of the summary: Peter McEleavy