Habitual Residence – Art. 3
To determine whether the Convention could apply to the application it had to be determined whether the child was habitually resident in the United Kingdom. Reviewing a selection of case law the Court held first that the child could only have one habitual residence at any particular time. It then accepted that a person, including a child, could have consecutive, alternating habitual residences in two different States at separate times. Considering the agreement entered into by the parents the Court held that this was the situation in the present case and that therefore at the time of the retention the child was habitually resident in Canada. It was argued for the mother that such a conclusion would undermine the policy objectives of the Convention. This was rejected by the Court. The trial judge held, inter alia, that the objective of ensuring that the child’s best interests were determined by litigation upon the merits in the place of the child’s habitual residence had less force where the child had two such residences in alternating time frames. In the instant case that policy objective had been met, not defeated, by allowing the litigation to take place in Canada.
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