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13 January 2012 / Simon Blain
Issue: 7496 / Categories: Features , Child law , Family
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Presence v residence

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Are we edging towards a single, universally applicable, “test” of habitual residence? Simon Blain reports

“Where does my client live?” That is one of those apparently simple questions that family lawyers face on a regular basis, which turn out to have far from simple answers.

Three recent cases bring some welcome clarity to this fascinating area of the law, although we are still some way from having a single, universally applicable, “test” of habitual residence. The test remains different, depending on whether or not one is dealing with a European case to which Regulation (EC) No 2201/2003 (Brussels II Revised) applies.

Relevant factors

On a referral from the Court of Appeal the European Court of Justice (ECJ) was asked to clarify the appropriate test for determining the habitual residence of a child for the purposes of Arts 8 and 10 of Brussels II Revised (Mercredi v Chaffe [2010] EU ECJ C – 497/10).

The mother was born on the French Indian Ocean island of Réunion and is French. The father is British.

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